A majority of the court predicate a reversal of this case upon two propositions: (1) That the court should have given a charge to the jury in favor of appellant, predicated on his confession introduced by the State; (2) because the court's charge on conspiracy was erroneous.
The learned judge gave a charge on the theory of appellant's confession, which appears to have been overlooked in the opinion, which I think, in connection with the court's charge on the same subject, was adequate. The testimony as to appellant's participation in the homicide, it occurs to me, was overwhelming. However, the State for some purpose introduced a meager statement of appellant, the introduction of which was contested by him. This statement tended to show that the altercation arose between appellant and deceased over a game of cards, and that on deceased abusing appellant he assaulted him; but the assault, according to his statement, was not of a serious character, as when he left, which was some three or four hours afterwards, deceased was quietly sleeping on the floor. They all left and went to the village near by together. The evidence shows that here they went into a doctor's office and remained some time; the parties leaving there about daylight. This was about 6 o'clock or after, near daylight. Shortly after they left the doctor's office, Dorsey and Hatcher parted from appellant, who fell by the wayside in a drunken state. The suggestion is (not borne out by any evidence) that Hatcher and Dorsey may have gone back to the house where deceased's body was found and murdered him after this. On the other hand, the State showed by positive evidence that the murder occurred before the parties left the outhouse where the murder and robbery occurred and went to the doctor's office. Concede, however, that the statement of appellant raises the question that Dorsey and Hatcher may have returned to the outhouse about daylight, after they parted with appellant, and then robbed and murdered deceased, the charge of the court in connection with that requested on the same subject by appellant fully protected his rights. The court instructed the jury, in subdivision 37 of the charge: "If you should find that Charley Hatcher and Paul Dorsey, or either of them, unlawfully killed John Johnson, you can not convict the defendant, Jim Moore, of the homicide, unless you further believe from the evidence before you beyond a reasonable doubt, either that such killing was the result of a previously formed conspiracy between said defendant and the party who did the same, or that the defendant was present when the same was done, and knew the unlawful intent of the party who did such killing and aided such party by acts or encouraged him by words or gestures to do such killing, in such manner as to make him a principal thereto, as the term principal is herein explained." Furthermore, appellant requested the following charge, which was given: "In regard to the evidence of the confession of the defendant made to the sheriff, if you believe there was any such confession made, and you find that such confession was free and voluntarily made by the defendant *Page 52 after he had been cautioned that such confession might be used against him, then you will consider the same; but if you believe that the defendant made such confession, but it is not shown to be freely and voluntarily made, or if it is shown by the evidence to have been made upon compulsion or persuasion, or under such undue influence as to extort same, then I charge you that you will reject it from your consideration in making up your verdict in this case. Should you consider such confession or declaration, then I charge you that such confession or declaration, having been introduced in evidence by the State, the whole of such confession or declaration must be taken together and so considered by the jury; and the State is bound by them, unless they are shown to be untrue by the evidence. Such confessions or declarations, if any you believe to have been made by the defendant, are to be taken into consideration, if at all, by the jury, in connection with all other facts and circumstances of the case. The State having put in evidence the statement and confession of the defendant, Jim Moore, concerning the transaction, you can not convict the defendant, unless you be satisfied beyond a reasonable doubt that the defendant's account of the affair, as stated in such confession, is not true." And again, the court gave this charge at the request of appellant: "A conspiracy can not be established by the testimony of an accomplice or accomplices alone, and in this connection I charge you that unless you believe from the evidence outside of the evidence of Paul Dorsey, and also outside of the evidence of Bill Jones, if you find that Bill Jones was also an accomplice, that there was a conspiracy to rob John Johnson, or rob and murder John Johnson, then the evidence is not sufficient to establish a conspiracy, and you can not consider any of the acts or declarations of Paul Dorsey, or any of the acts and declarations of Charley Hatcher, as to such conspiracy against the defendant in this case."
So it occurs to me, if there is anything in the so-called confession of appellant as introduced by the State, every right of appellant was amply safeguarded by the instructions given.
The opinion also declares that the charge on conspiracy as given by the court was erroneous, as being on the weight of evidence, and refers to the case of Hudson v. State,43 Tex. Crim. 420, 4 Texas Ct. Rep., 167, and pretermits any further discussion of the question. I agreed to the decision in that case, and the charge of the court there on the subject of conspiracy was similar to that given by the same learned judge on the trial of this case. In the rendition of that case we must have overlooked the opinion in Luttrell v. State, 31 Tex. Crim. 493, which involves a discussion and approval of the charge here disapproved. I can do no better than simply refer to the discussion of the charge in that case, on page 506 of the opinion, as I believe the reasoning is decisive of the objections here urged. Evidently that case was overlooked, otherwise it should have been overruled. However, I believe it is good law, and shows the charge complained of is not upon *Page 53 the weight of testimony, but was merely the enunciation of a correct legal principle.
I have carefully read the evidence taken on the motion for change of venue. While a number of the witnesses say that in their opinion appellant could get a fair trial in Fannin County, yet the testimony discloses that the case, on account of its enormity, became the subject of comment throughout the county; and this was intensified by the former trial of Hatcher, a coconspirator with appellant. Taking the testimony of the witnesses altogether, it occurs to me that the case should have been reversed on this ground.