Appellant was given a term of five years in the penitentiary for setting fire to and burning a house belonging to Hickman Cumbie Company.
The fire occurred on the night of the 28th of January, 1908. M.R. Jones had previously bought the house situated by the side of and within eighteen inches of the one mentioned in the indictment. Appellant had gone to the little town of Bronte, where the fire occurred, a few days before the burning, to occupy Jones' house as a pool-room. On the night of the burning appellant was sleeping in the Jones house. He purchased some coal oil a day or so before the burning and was seen about the rear end of the house that was burned looking under and into it. A few days prior to the burning Jones and appellant went from Bronte, where the burning occurred, to Ballinger, for the purpose of insuring the Jones house, which they did for six hundred dollars. The house was estimated at a valuation of from three to five hundred dollars. Without going into a detailed statement in regard to the immediate environments of the fire, it is shown by the testimony that the Hickman Cumbie Company's house was first on fire and from this the Jones house caught fire and was burned. Alexander testified that in January, 1908, he lived in Ballinger, was acquainted with appellant and saw him for the first time the day the former wrote the insurance for Jones. That they were together in his office, appellant being present part of the time, and the conversation was confined to insurance. This witness says that Jones and appellant came to his office and Jones said, "This is the man that is going to put in a pool and billiard hall," and Gracy said, "Yes;" and it was the understanding at the time that appellant would put in the *Page 70 hall at once; that he accepted the application for insurance. In describing the building they gave a false description and represented that it was either sixty or eighty feet long and either twenty-four or twenty-six feet wide. Witness had forgotten exactly. It was much smaller in dimensions. That the insurance was taken out on the building, but not on the contents; at the time it seems to have had no contents. At the time of the fire the town became aroused and many went to the scene. Appellant was there and had taken his bedding and things from the house at the time the first parties reached the place, and at which time some of the witnesses say Jones' house, or that occupied by appellant, had not caught on fire but that the Hickman Cumbie house was fully on fire. Riley testified he was engaged in the banking business and had seen appellant a few times. Along about the latter part of January appellant went into his bank and asked about a certain building and its location, etc. This was the Jones building. This witness also testified in regard to a conversation had with appellant in regard to expected money. That appellant asked him if money had come to the bank for him. After the fire the oil can which appellant had purchased a day or two before the fire was found outside and nearby the burned building. The sheriff of Lampasas County testified that he knew appellant and Jones; that they lived at Lampasas.
Appellant reserved a bill of exceptions to the introduction of the following letter, which was received by appellant at Bronte, the place of the burning, on the 29th of January, 1908, which was the day following the burning the previous night. This letter is as follows:
"1-28-1908.
"Mr. Robert F.,
"Dear Dad.
"I received your letter asking why your tables did not come an I have went today to see about them he sad there was a morguag against Some of them and they belong to 2 Different People.
"I think Every thing will be all wright for you soon your pardner has Decided to order New Tables. When your Pardner found out that you had secured a house that suited you and you rote him to Send the table he went to Close the Trade and found they was all tied up so he decided to order knew ones.
"I am very buisy So of Course Id do any thing I can for you and him he thought best to order New ones and ask me and I thought So to any further Infermation refur to him.
"Your friend,
"M.R.J.
"P.S. your Mother is doing Nicely a wants to See you soon I see to her all the time. *Page 71
"I received your letter I was Surprised when I got it I thought Ever thing was over.
"Your Proposition was all foolish if you have not let your head off at rong place.
"You ought not told any one who you had ordered anything from I dont See why you Even told them you had ordered from R for I can Say with perfectly Safety that I am not going to Risk any one Else in the Pot If you have got the thing mixed up til Every body Knows more about the business than you do you had better let it alone.
"I dont see why if you comense west of your house why it could be question by any one you have no Interest in the house west of you it is nothing to you of Course you now what you have told Il Pro seed to order Some Tables from Brunswick Brack Calender Co this Evening I will order in your Name Juast as though you ordered them your Self then we can Counter mand the order any Time in 20 days it takes 20 days to get them out you can Show the letter I have rote you if you See fit.
"But if you do you must do it a way he will not Suspishion anything do your do and come a head I have Every thing all wright and in good shape Yours,
"X.Y.Z.
"PS Turn over over (and the following is on the back of the last sheet):
"If you do what you Started do you Stay there and dont be rite off like a Jug handle Stay there about one day and try to get a nother house and find some objections to it and the next day you can come home all wright.
(Written at the bottom of the last page, and crossways of the page as follows:)
"I tried to send the money throug the Bank but they was closed So I will send it By Mail."
The bill of exceptions sets out several objections to the introduction of this letter: first, it was received at the postoffice at Bronte by appellant after the burning; second, that the letter and its contents purport to be and was the act of some person other than appellant; third, it was hearsay and written in the absence of appellant, and that independent of said letter and the statements therein contained, there was no testimony connecting the appellant with the letter or the writing or the contents thereof, or to show that he had any knowledge thereof or acquiesced in the same or any part or portion thereof, but it was the act and declaration of another for which appellant was in nowise responsible or bound. These constituted the grounds of objection enumerated in the bill. We are of opinion that this letter was properly admitted. Appellant *Page 72 relies upon a line of authorities to the effect that the acts and declarations of one co-conspirator can not be used against another co-conspirator, if made in his absence after the commission of the crime or the termination of the conspiracy. There is no question of the soundness of appellant's proposition as a question of law or rule of evidence, but it is as equally well settled that the acts and declarations of one conspirator is admissible against another conspirator pending the conspiracy and until its final termination. As long as a conspiracy is pending or the common purpose and design is not completed, all the acts and declarations of co-conspirators are admissible. This proposition includes anything that was within the contemplation of the conspiracy, such as dividing the spoils or any of those matters that may be subsequent to but included in the scope of the conspiracy. Franks v. State, 36 Tex.Crim. Rep.; O'Neal v. State, 14 Texas Crim. App., 582; Rix v. State, 33 Tex. Crim. 353. The facts introduced in connection with the letter are sufficiently strong to show that not only was the house to be burned but obtaining of the insurance money was equally contemplated. The facts sufficiently show the conspiracy. The letter in question discloses that Jones had failed to send appellant money through the bank as agreed, but had sent it in the letter introduced in evidence. It is evident from this letter that appellant was to set fire to the Hickman Cumbie house. This house was located by the witnesses at the point mentioned in the letter, the Jones house being situate between the bank building and the Hickman Cumbie building. We are of opinion this record shows that the burning of the house was one of the steps in the agreement or conspiracy, the ultimate design of which was to obtain the six hundred dollars insurance. The conspiracy had not ended, the ultimate design had not been accomplished. Appellant's proposition is unsound that the evidence was inadmissible by reason of the ending of the conspiracy, and that the declaration or the writing was the act of one of the conspirators after the consummation of the conspiracy. The letter was written before the burning, though received by appellant afterward. It was written on the twenty-eighth, at Lampasas, and reached Bronte, Coke County, on the twenty-ninth. The house was burned on the night of the twenty-eighth. This was a communication by one of the conspirators to another in regard to the conspiracy, and in furtherance of that conspiracy, and the mere fact that appellant was not aware of the contents of the letter until subsequent to the burning would not render it inadmissible. It was not a statement by Jones to another party in the absence of appellant after the completion of the conspiracy. This was a communication directed from one of the conspirators to the other, received by that other, and in no way denied by the other, and referred to matters that seemed to be well understood *Page 73 and agreed between them. It will be noted that appellant received the ten dollars from Jones sent him from Lampasas, which had been expected through the bank prior to the burning. So we hold, first, the conspiracy had not terminated at the time of the reception of the letter by appellant; and, second, that it was a communication from one co-conspirator to the other, and is not within the rule that the incompetent acts and declarations of co-conspirators made or done in the absence of another, are excluded. See authorities cited above; 8 Cyc., 680; 12 Cyc., 435-436-440. In each volume of Cyc., supra, in the footnotes will be found many authorities supporting the text. We are, therefore, of opinion that there was no error in the action of the court permitting the letter to go to the jury as evidence. This being the only question urged for reversal, it is not well taken, and the judgment is therefore affirmed.
Affirmed.
ON REHEARING. October 21, 1909.