At a former day of this term the judgment herein was reversed. It was said, in the opinion of the writer, that manslaughter was in the case and should have been given in charge to the jury. The majority of the court, however, did not agree to that. This is the principal basis of this motion for rehearing. In this respect the motion requests the majority of the court to agree with the writer and hold that manslaughter should be charged upon another trial.
Reviewing the record, the writer still adheres to his former belief that manslaughter was in the case and should have been given the jury, and upon another trial it should be so charged. I do not care to reiterate what I have said in the former opinion. The majority, however, adhere to their views. I cite in support of this Betts v. State, 65 Tex.Crim. Rep., 133 S.W. Rep., 251; art. 1148, Penal Code, 1911; Branch's Crim. Law, sec. 504; Johnson v. State, 42 Tex.Crim. Rep.; Runnels v. State, 42 Tex.Crim. Rep.; Taylor v. State, 41 Tex. Crim. 148; Lee v. State, 44 Tex.Crim. Rep.. Other cases might be cited, but these are sufficient.
Two other questions are suggested for decision, which were not passed upon in the former opinion. The writer thought he had sufficiently passed upon these questions, in a general way, without specifying, they being hearsay statements made out of the presence of the defendant. One presented the statements of officers of Oklahoma made to officers of Texas who had gone to that State in search of defendant, who, it is shown, had gone to Oklahoma after this tragedy. Those officers informed the Texas officers that defendant was going under a different name from his real name. Defendant was not present and knew nothing about it. We are of opinion this should not be introduced against the defendant. Also while Claud Gallagher was on the stand testifying for the State he was asked who it was Asa Farris told him, Gallagher, threw the rock and hit the Mexican, deceased, and wounded him in the forehead. Farris, Gallagher and the defendant are the supposed participants in the wounding of the Mexican, which resulted in his death. This statement that Farris made to Gallagher was out of the hearing of the defendant and after the offense is alleged to have been committed, and should not be used against appellant. The acts and conduct and words and statements of co-conspirators after the completion of the conspiracy can not be used against the other parties to the transaction when they were not present and did not hear it. This is a well *Page 34 settled rule, and is discussed extensively in Cox v. State, 8 Texas Crim. App., 254.
The original opinion not having dealt specifically with the latter two questions, and appellant insisting upon their decision in order to avoid complications upon another trial, these matters are discussed. The trial court will understand that hearsay testimony is not admissible. We thought that the trial court would understand this from what was said in the original opinion about the hearsay testimony with reference to some of the other questions.
With these additions the opinion as heretofore delivered will stand.
Overruled.