NELSON v. THE STATE

1. — Murder in Second Degree — Conspiracy — Charge of Court.

Where the evidence tended to show a conspiracy on the part of the defendant and his companions, evidence of the acts or declarations of co-conspirators in furtheranrce of the common design made or done subsequent to the formation of the conspiracy were properly admitted in evidence, but the court should have instructed the jury with reference to how they should consider said acts and declarations in the event the conspiracy was established, and to disregard them if it was not established. Following Chapman v. State, 45 Tex.Crim. Rep.; 8 Texas Ct. Rep., 392.

All testimony which was in furtherance of the conspiracy in a case of homicide, as to acts and declarations of co-conspirators done and made in the absence of defendant are admissible in evidence.

Where the evidence showed on the trial of appellant that the husband of the deceased uttered scandalous remarks concerning his nieces, which remarks were communicated to appellant, and that thereupon he and his companions sought a meeting of deceased's husband and in attempting to slay him, killed his wife, the court should have charged on manslaughter and it was immaterial whether appellant conspired with others to go with him on that occasion; if he was laboring under excitement on account of said remarks and was incapable of cool reflection; or if the deceased interfered and assisted her husband and they slew her, it would be manslaughter under the circumstances.

In a prosecution for murder where there was evidence that appellant and his companions went to the husband of deceased for an explanation of certain slanderous remarks he made concerning appellant's nieces, and without hostile demonstrations were attacked by said husband in which attack his wife, the deceased, joined and fired at the parties and was shot and killed by them, the court should have accurately applied the law of self-defense to this phase of the case, as applicable in repelling such attack of the wife as well as that of the husband.

HENDERSON, JUDGE.

Appellant was convicted of murder in the second degree, and his punishment assessed at five years confinement in the penitentiary; hence this appeal.

As we read the evidence, three theories are presented. The State was authorized to insist on conviction for murder on the ground, that appellant and his codefendants entered into a conspiracy to kill Bob Alexander because of certain insults which said Alexander had uttered against certain female relatives of appellant, and that at the time of such killing they were cool and deliberate and not actuated by passion arising from said insults, and that in killing or attempting to kill said Bob Alexander they accidentally killed D.V. Alexander, his wife, or that D.V. Alexander was included within the scope of such conspiracy should she interfere, and in resisting their attempt they killed her. Or the State could insist on a conviction for manslaughter on the ground of insults to the female relatives of appellant and those with him, uttered by Bob Alexander, and which had been communicated to them, and that at the time of such killing they were excited by passion on account of such insults. On the other hand, if appellant and his confederates went to Bob Alexander's on a peaceful mission to have an explanation and statement in regard to said alleged insults to their female relatives, and when they went to Alexander's for said purpose, Alexander and his wife attacked them, then appellant had a perfect right of self-defense.

However, the court in his charge to the jury utterly ignored the doctrine of conspiracy, although he admitted evidence which could only have been authorized on the ground of conspiracy. The court also ignored manslaughter, as he failed to give any charge on that subject, although the evidence presented that issue and demanded a charge on that subject. With reference to the question of conspiracy, appellant requested a number of instructions presenting that phase of the case, and safeguarding his rights, — especially with reference to the declarations of other codefendants made in his absence. Now, with reference to a conspiracy we lay down this proposition: There is evidence in the record tending to show a conspiracy on the part of appellant and his companions to kill Bob Alexander. This conspiracy may be gathered from antecedent acts and conduct of appellant, in connection with his codefendants, both before and on the morning of the homicide. Where evidence has been admitted, as is the case here, tending to show a conspiracy, evidence of the acts or declarations of other co-conspirators with appellant, in furtherance of the common design, made or done subsequent to the formation of the conspiracy, are admissible in evidence against appellant. Such acts and conduct, as we understand here, were admitted in evidence. It was the duly of the court, however, to have instructed the jury with reference to how they were to consider such acts; that is, if they believed a conspiracy was established on the part of appellant and those acting with him at the time of the homicide to kill Bob Alexander, because of insults uttered by him towards the female relatives of appellant, and that in pursuance of such conspiracy they went to the house of said Alexander for the purpose of killing him, and that they were not actuated by passion at the time, and before any attack on his part, they assaulted him and in endeavoring to kill him they accidentally slew his wife, or if they had determined beforehand that, if appellant's wife or any one else, interfered to prevent them from killing him, and that they intended to kill such person, and appellant's wife did interfere in the difficulty and they intentionally killed her, then they would be guilty of murder, either of the first or second degree, as the case might be. On the other hand, it was the duty of the court to have instructed the jury that, if they did not believe any conspiracy had been established between appellant and the others acting with him to kill Bob Alexander, on account of said alleged insults, they could not regard any acts or declarations made by others, in the absence of appellant, tending to show animus or any acts of preparation on their part.

In this connection we would observe that the case of Chapman v. State, 8 Texas Ct. Rep., 392, in its facts, as well as its legal propositions, is very much like the case at bar, and we can do no better than refer to said case, for the propositions arising in this case, in regard to the doctrine of conspiracy.

We would further remark that some evidence was objected to as to acts and declarations of others made in the absence of appellant, on the ground that no conspiracy was shown, and that such acts and declarations were not in furtherance of any conspiracy. All of such testimony which was in furtherance of a conspiracy was admissible.

In regard to the failure of the court to charge on manslaughter, as we understand the evidence, so far as the State's case was concerned, this was the paramount issue. There can be no question from this record that Bob Alexander uttered scandalous remarks attributed to him by the witnesses in regard to the female relatives (nieces) of appellant. There can be no question that these slanderous accusations were communicated to appellant prior to the homicide. We fail to recall any testimony which shows that he may have met with Bob Alexander between the communication of the slanderous remarks to him and the homicide. Nor is it at all doubtful, that he went to see Bob Alexander, on the morning of the homicide on account of said slanderous remarks. According to the State's theory, he and his companions sought the meeting on a hostile mission. According to his own account he went there on a peaceful mission to have an explanation made to him by said Alexander in regard to said remarks. Now, whether he conspired with others to go with him, on that occasion or not, is immaterial. If he was laboring under excitement on account of said remarks, and was incapable of cool reflection, and when they reached the place, appellant and his companions in attempting to slay Bob Alexander, although without any justification on their part, accidentally killed his wife, D.V. Alexander, then it could be no more than manslaughter on his part. Or if she interefered, and assisted her husband, and they slew her, it would be manslaughter as far as he was concerned. As stated before, it could only be murder in case he was not actuated by passion at the time. As heretofore stated, no charge was given on manslaughter whatever, and yet it occurs to us that this is the only evidence in the case on which the State ought really to ask for a conviction. Why the learned judge failed to give a charge on this subject we are at a loss to understand. On the other hand, while the court gave a charge on self-defense, we believe the court should have applied the law to the facts of this case more accurately than was done, and the jury should have been especially told, that appellant and those with him had the right to defend themselves not only against Bob Alexander but against any hostile act or demonstration of his wife, D.V. Alexander. There was evidence that she engaged in the difficulty, and fired at the parties. If appellant and those with him went there on a peaceful mission, or if after going to Alexander's they made no hostile act or demonstration against Bob Alexander or his wife, and Bob Alexander first attacked them, and his wife joined him in such attack, then they had a right to self-defense as well against her as against him, and the charge should have been so framed. As we read the charge they were not authorized to defend against an assault made by her, though the record shows evidence of such assault by her.

There are other assignments but, in the view we take of this case, it is not necessary to discuss them.

For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.