Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal.
Appellant assigns as error the action of the court overruling his motion for continuance. There being no bill of exceptions presenting this error, the same can not be considered. He also complains of the action of the court admitting the evidence of Ude Cude. It appears from the bill of exceptions that appellant and Ude Cude were confined in jail in the same cell, defendant being incarcerated on this charge and Cude for another offense; and the State was permitted to prove by Cude that while they were so in jail together, appellant proposed to him to swear to facts on his behalf constituting an alibi, and he would do as much for witness when his case came up for trial. The bill further shows that the only warning given appellant was when he was arrested in Mississippi by the officers who went after defendant, which was on the 11th of January, 1901. The bill does not show when the statement was made by appellant to Cude in the jail in Texas. The objection made by appellant to the introduction of this testimony was because it was too remote in point of time after the warning given; and we are referred to the case of Barth v. State, 39 Texas Criminal Reports, 381, as authority for its exclusion. In Barth's case, whether the statement was made within one, two or three weeks after the warning given, the witness was not able to state. However, the court appears to have conceded after the admission of this testimony that it should be excluded, and accordingly orally instructed the jury that they should not consider the testimony, — that it was excluded from their consideration, — and subsequently, in the written charge, also instructed the jury to the same effect. Appellant contends that the admission of this testimony was of a prejudicial character, and that, having been admitted, it was beyond the power of the court to eradicate it or prevent its influencing the jury; and on this subject he also refers us to Barth v. State, supra, and Welhousen v. State, 30 Texas Criminal Appeals, 623. Both of said cases are authority for appellant's contention, but it will be observed the testimony admitted and subsequently excluded was of a very damaging character. In this case there was no confession of guilt, — only an attempt to fabricate testimony of an alibi. Under the circumstances of this case, we think the principle announced in Miller v. State, 31 Texas Criminal Reports, 636, is more in point. As is stated in that case, there is a contrariety of decisions of this court on the subject of the exclusion of testimony after it has once been improperly admitted. Some of the cases hold that the exclusion of such testimony will not cure the error, while others hold the contrary. In such a conflict, the true rule would seem to be that if the admitted testimony is of such a damaging character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury, and thus curing the error, it will be cause for reversal; otherwise, if the testimony is not of that damaging character, and not likely to influence the jury, it can be withdrawn, and the error of its admission *Page 240 thereby cured. We deem the testimony in this case of the latter character.
On the trial of the case the State was permitted to prove by one Wisdom that on the Saturday night before the killing, while the parties were at Fitzwater's saloon, and while he (witness) and deceased, Johnson, and Jim Moore were engaged in a game of cards, somebody said to Moore, "I would not play with the old man [meaning Johnson]; he is too drunk," — and that Moore replied, "I am going to have his money, if I have to knock him in the head." It was not shown in this connection, as stated by the bill, that appellant was immediately present when this remark was made, or that he heard it; and it is further suggested by the bill that this was prior to the formation of any conspiracy on the part of Moore, Dorsey, and Hatcher to kill deceased, if any such conspiracy was in fact formed. The court admitted this testimony, and subsequently excluded it, and instructed the jury not to consider the same. This action of the court is assigned as error. In the first place, we are inclined to believe the testimony was admissible, although it be conceded that no conspiracy was formed to rob deceased until afterwards, as this was a remark of one of the conspirators, evidently in line with and in pursuance of the conspiracy; and, if subsequently appellant came into the conspiracy, he adopted all that had been said and done before. Harris v. State, 31 Tex.Crim. Rep.; Stevens v. State, 42 Tex.Crim. Rep.. In addition to this, the testimony was excluded by the court, and the jury charged not to consider it.
The court's charge is attacked in a number of assignments, but we will consider only such as we deem important. Appellant complains that the court did not define "malice aforethought." Now, it has been held that it was necessary to aver malice aforethought in an indictment. Cravey v. State, 36 Tex. Crim. 90. But in that case it was held that it was not necessary to define the term "malice aforethought," where malice and express and implied malice were adequately defined. And see Hamp v. State, 1 Texas Ct. Rep., 366.
It is also contended that the court committed an error in telling the jury that the witness Paul Dorsey was an accomplice; that this was tantamount to a suggestion that he was an accomplice with defendant in the commission of the offense, and so it was equivalent to telling the jury that appellant was guilty. To support this contention, appellant refers us to Spears v. State, 24 Texas Criminal Appeals, 537. An examination of said case shows that the court instructed the jury that the witness was an accomplice with defendant Spears in the commission of the offense. Here the court gave no such instruction, but merely informed the jury that the witness Dorsey was to be regarded as an accomplice. If Dorsey was criminally connected with the commission of the offense, regardless of appellant's participation therein, he would be an accomplice, and his testimony would have to be corroborated. It has frequently been held that, where the testimony clearly shows the witness is an accomplice, it is competent to so instruct the jury, and this has never been considered *Page 241 a charge to the effect that appellant was guilty. Sessions v. State, 37 Tex.Crim. Rep.. And for other authorities see White's Ann. Code Crim. Proc., sec. 1000.
It is further urged that the court's charge on the necessity of corroboration of an accomplice, and that one accomplice could not corroborate another accomplice, was given in such shape as to confuse and mislead the jury, and that the requested charges on that subject should have been given. We have examined the charge carefully in the respect in which it is criticised, and in our opinion it was sufficient.
Appellant also insists that the testimony shows the object of the parties was only to rob, and not to murder, and, it not being shown that they used an instrument likely to produce death or evidently intended to kill, that a charge on manslaughter should have been given. The circumstances of this killing, as detailed by the accomplice, and who was corroborated by other testimony, shows that it was a most cruel murder. They not only beat deceased into insensibility, and then robbed him, but continued beating him until he was dead, and then, as if to make sure of their victim, set fire to him. Under such circumstances, a charge on manslaughter was evidently not called for. While the court gave a charge on murder in the second degree out of abundant caution, this was scarcely called for.
We do not deem it necessary to discuss the other assignments of error. We have carefully examined the record, and in our opinion appellant had a fair trial, and the evidence amply supports the verdict. The judgment is affirmed.
Affirmed.
[Note. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]