1. Murder — Conspiracy — Evidence of Preparation and Threats by One Conspirator. — On a trial for murder where three parties, one of whom was the defendant, were acting together at the time of the killing, and it was objected to evidence of preparation and threats by one of the others not on trial, because a prima facie case of conspiracy had not been established, Held, that the evidence was admissible to show that the party making such preparation and threats was the aggressor, and that the others were present, and, knowing that he was the aggressor, engaged and took part with him in the killing.
2. Same — Impeachment of Witness by His Contradictory Statements — Charge as to. — On a trial for murder, where the testimony of a witness taken at the examining trial was introduced to impeach his evidence as a witness on the trial, and the court instructed the jury, in effect, that such testimony was admitted not for the purpose of proving that what the witness swears to on the trial is untrue, but to show his unworthiness of belief, Held, erroneous. Where a witness makes contradictory statements under oath as to important facts, a jury would be justified in considering his testimony given on the trial as absolutely false, and in entirely rejecting the same, because not probably true. Following Howard v. The State, 25 Texas Crim. App., 686.
HURT, PRESIDING JUDGE.
This is a conviction of murder in the second degree. Appellant's punishment was assessed at confinement in the penitentiary for ten years.
The State's theory is, that this homicide was committed in pursuance of a conspiracy between Marshall, Tom, and Dan Cline; that one of them killed deceased, and all were present. The testimony for the State makes Marshall the aggressor, and after the first shot Tom and Dan took part in the shooting. It is not known which inflicted the mortal wound. The State introduced in evidence preparation and threats made by Marshall. To this appellant objected, contending that no conspiracy had been shown. We are of opinion that a conspiracy at least existed between Marshall and Tom, and there are strong circumstances tending to show that appellant entered into the conspiracy before the killing. The Reporter will give the facts.
Concede that the evidence does not present a prima facie case of conspiracy. Still, the preparations and threats of Marshall are most evidently competent upon another ground. The jury may not have believed that if there was a conspiracy appellant belonged to it, but may have believed that Marshall was the aggressor, and that those present knew it, and with this knowledge took part in the shooting which resulted in the death of the deceased. Appellant contends that the deceased or his brother (who was riding with him in the buggy) was the aggressor, and began the shooting, etc. Now, in support of the theory that Marshall was the aggressor, that he began the fight, his preparation to kill the Cunningham brothers (deceased included), and his threats to do so were competent evidence upon this issue.
The most important witness for the State (Lee Monroe's testimony coming as it does in such doubtful shape) was Dave Cunningham. He not only swears that Marshall stopped the horses to the buggy and that he fired a pistol, etc., but he places Tom and appellant near by, armed, and in fact swears that they all fired, making a clear case against appellant independent of a conspiracy. When this witness testified before the examining court he made no such case against the appellant. He then swore, that Marshall shot and killed his brother; that Tom and Dave were with him; that he did not know whether they shot or not. This testimony, given before the justice of the peace, was introduced by appellant for the purpose of impeaching Dave Cunningham. Upon this matter the court instructed the jury: "A witness may be impeached by showing that a witness has made and sworn to other and different statements at another time and place from those made on the trial. The object of this class of evidence is not to prove what the witness swears to in the trial is untrue, but to show his unworthiness of belief, and it goes to you like all other evidence, to be considered by you in arriving at a verdict." If the object of such evidence is not for the purpose of convincing the jury that what the witness swears on the trial is untrue, then to permit a man to be so impeached is a judicial farce. Why impeach him at all? Simply for the fun of doing it? A witness who will make conflicting statements under oath regarding important facts may not tell the truth, and a jury would be justified in taking his testimony given on the trial as absolutely false. The only purpose for which such evidence (impeaching) can possibly serve is to warrant the jury in rejecting the testimony of the witness because not probably true. But we can add nothing to what was said on this subject by Presiding Judge White, in Howard v. The State, 25 Texas Criminal Appeals, 686.
Reversed and remanded.
Judges all present and concurring.