Appellants were indicted and tried jointly for the murder of Dick Watts. They were found guilty, and their punishment assessed at forty and twenty years, respectively, in the penitentiary.
The record, statement of facts and briefs for both sides are very voluminous. There are apparently, however, but few questions necessary to be decided.
In view of the disposition we make of the case, we will not state at any length nor discuss the testimony.
The testimony was wholly circumstantial. The theory of the State substantially was that appellant E.E. Sapp originally entered into a conspiracy with others by which it was contemplated and intended that he should marry a rich old widow, he being a young man, manage to get possession of her property, and then make way with or kill her so as to get rid of her and ultimately to divide the property with the other conspirators. It also embraced the making way with or killing the witnesses to the murder of his wife. In fact, it embraced doing *Page 367 any and everything that was necessary not only to kill the woman but prevent conviction therefor, — all to accomplish the end of getting her property and dividing it between the conspirators. That Lou Sapp entered the conspiracy with his brother, E.E., after the killing of E.E.'s wife, and included making way with by killing, the deceased Watts, who killed E.E.'s wife, and Havard, who was a companion of him at the time and knew all about it, thereby preventing the conviction of E.E. Sapp for murdering his wife, or having it done, and to succeed later in securing her property through a will she had executed in E.E. Sapp's favor and diving her property as stated. There was an abundance of proof introduced by the State circumstantially tending to prove the theory of the State.
Appellant has a very large number of bills of exception; some to the introduction of testimony; others to the exclusion of it; and others to charges given and charges refused. Many of them raise the same or kindred questions.
It was established without controversy that the deceased, Dick Watts, killed the wife of E.E. Sapp by shooting her in the back. Appellants claimed this was accidental. The State's theory was that appellant E.E. Sapp hired Watts to kill her and that Havard knew all this and was a companion of Watts in this matter. The State introduced the testimony of several witnesses, who testified substantially to Watts' repeated declarations and also some by Havard, to the effect that E.E. Sapp had hired him to kill said Sapp's wife and was to subsequently pay him a considerable sum therefor. The circumstances would tend strongly to show that this was brought to the knowledge of E.E. Sapp, and that thereupon he induced his brother Lou to aid him, and that his brother did aid him, in corralling Watts and Havard, getting them drunk, or while drunk, enticed Watts, at least, away from Beaumont, where they all then were, taking him on the train and in an automobile into the big thicket in Hardin County, where they murdered and buried him, and his body was a few weeks thereafter found and identified. All this testimony objected to, as shown by appellants' bills, was clearly admissible against both appellants to show motive. It has always been held by this court that such testimony was admissible for that purpose. (White's Ann. C.C.P., secs. 1070, 1072 and 1074, subdiv. c. Judge White collates many cases under these sections. See also Belcher v. State, 71 Tex.Crim. Rep.; Lane v. State, 73 Tex. Crim. 266. )
It is also well established that it is neither necessary nor proper to limit testimony which goes to prove motive. (2 Branch's Ann. P.C., sec. 1885, p. 1047, where he collates some of the authorities.)
It is also well established that everyone who enters into a conspiracy to commit a crime before the ultimate object and purpose of it is completed is deemed a party to it from its inception and that he adopts as his own all the preceding acts of the others, and that their declarations or statements made before he entered into it are admissible as *Page 368 against him, as well as those who originally entered into it, even though what was said or done by any of the others was done in his absence. The principles applicable to this question and the authorities of this State establishing them are so plainly and clearly laid down in 1 Branch's Ann. P.C., secs. 693-694, that we deem it unnecessary to elaborate them. We have recently in some cases restated and applied these principles.
Mrs. Corley was a witness for appellants and from their standpoint gave material testimony in their favor substantially to the effect, in contradiction of some of the State's testimony, that E.E. Sapp, soon after he married Mrs. Sapp, who was killed, was very attentive to her and she was very much attached to him and frequently stated to her and wrote her letters, all tending to show that the relations between E.E. Sapp and his said wife were cordial, affectionate and that she had confidence in him, etc. For the purpose of impeaching her, the court permitted several witnesses to testify in substance that at the time Mrs. Sapp was lying a corpse soon after she was killed, Mrs. Corley said: "Poor old thing, Sapp had you killed," and that she said, "It is a cold-blooded murder and Sapp ought to be arrested right now; that everybody knew Sapp married her for her money, and that was a poor way to get rid of her." Clearly all this testimony by these several witnesses was inadmissible and has uniformly been held so by this court since the rendition of the opinion in Drake v. State, 29 Texas Crim. App., 265. The State, if it could, would be permitted to impeach Mrs. Corley by proving that she made declarations prior to her testimony herein different from what she made along the same line at any other time prior thereto, whether at the time Mrs. Sapp was lying a corpse or not, but the proof by the witnesses objected to should have been excluded. It was wholly inadmissible under the line of authorities stated.
Another of appellants' bills shows that A. Hard, who was conductor on the Santa Fe train from Beaumont to Lumberton, testified in substance that persons answering the description of Lou Sapp and Dick Watts did not travel on his train from Beaumont to Lumberton on January 7th. The State, by its witness Jarvey, was permitted in impeachment of Hard to prove that Hard, at Cleveland in February or March, told him that "there was not any doubt that the Sapps were guilty," and that "there was not any doubt but that Lou Sapp and Dick Watts got off that train on January 7, 1915, at Lumberton and became passengers in an automobile driven by E.E. Sapp." The first part of Jarvey's testimony to the effect as just stated above that there was not any doubt but that the Sapps were guilty was also wholly inadmissible, and the court erred in admitting that part of Jarvey's testimony. The other part just above stated, we think, was admissible; that is, that Hard on this occasion said to him there was no doubt but that Lou Sapp and Dick Watts got off that train on January 7, 1915, at Lumberton, etc.
None of the testimony of the officers shown by appellants' bill of *Page 369 exceptions No. 22 was admissible. The most that the State's witness Mary Keith could have been asked on cross-examination by appellants' attorneys was whether or not she was a common prostitute. This was asked her, and she denied she was. This concluded the inquiry into this subject, and none of the officers could testify that her reputation was that of a common prostitute; nor was any of the other testimony by these officers, as shown by this bill, admissible. (McCrary v. State,38 Tex. Crim. 609, and other authorities cited in Wilson v. State, 71 Tex.Crim. Rep..)
In appellants' bill No. 10 they complain of that paragraph of the court's charge to the effect that appellants were indicted for the murder of Watts and were on trial for that offense only, and they could not be convicted for the killing of Havard or Mrs. Sapp, but they could consider the evidence touching on the killing of these parties, Havard and Mrs. Sapp, for the purpose of enabling them to pass on the question of whether or not defendants, or either of them, killed Watts, and for no other purpose. Appellants' objection to this charge was that the court ought to have told the jury that they could consider the testimony of the killing of Havard and Mrs. Sapp only for the purpose of showing motive on the part of defendants to kill Watts. As shown above, it would be improper for the court to charge on any testimony which would tend to show motive for the crime charged in this case. The idea of the court in giving that charge seemed to be to prevent the jury from convicting the appellants for killing Dick Watts, because they had killed Havard or Mrs. Sapp. If appellants object to any such charge on another trial, the court should omit it. We can not see how the jury could be misled to convict appellants for the killing of Havard or Mrs. Sapp on a trial under an indictment charging them with the killing of Watts only. If it becomes necessary to caution the jury on another trial on this point, then such charge should be so worded as not to tell the jury directly that appellants killed either Havard or Mrs. Sapp, but that if the testimony so shows or tends to show.
Appellants objected to another charge of the court, which in substance was that they could consider for no other purpose than passing on the question of whether or not defendants, or either of them, killed Watts that testimony introduced with regard to the relationship of E.E. Sapp and his wife Ellen as to how they got along as man and wife after their marriage. This charge should be omitted on another trial.
It is always permissible for impeachment of an accused to show by him on cross-examination that he has been indicted or convicted of any felony, if not too remote, but it is not permissible to require an accused when testifying to show by him that he has committed any other offense, whether arrested on complaint therefor or not, if as a matter of fact sufficient time has elapsed thereafter to show that the grand jury has had an opportunity to investigate and act upon it and have *Page 370 not found a bill of indictment. (Wright v. State, 63 Tex. Crim. 429. ) The court, therefore, committed an error in permitting the State to have Lou Sapp to testify on cross-examination to the effect that he had before that killed a man in Louisiana, for which, it seems, he had not been indicted; and also by requiring E.E. Sapp to testify to shooting his brother-in-law, for which he had not been indicted, as shown by appellants' bills Nos. 41 and 42.
Complaint is also made by appellants of the charge in that in defining who are principals, the court in substance quoted that part of the statute to the effect that one is a principal who not being actually present keeps watch so as to prevent the interruption of those engaged in the commission of the offense. And also those are principals who endeavor at the time of the commission of the offense to secure the safety or concealment of the defendants. It seems the court merely in substance quoted the statute in these respects and did not submit any issue of that kind to the jury for a finding. However, only that part of the statute applicable should be stated in the charge, and that part of it relating to principals which is inapplicable should not be quoted. This, we think, would not have presented reversible error. But for the very purpose of preventing objections to the charge, such matters which are inapplicable should not be included therein.
We have carefully considered all of appellants' assignments, but have deemed it unnecessary to take them up and discuss them separately. None of them present any reversible error, except as shown above. Some questions are assigned which doubtless will not arise on another trial. It is unnecessary to discuss them.
For the errors above pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION TO REVISE AND REFORM OPINION.
December 20, 1916.
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