Pulpus v. State

Truly, J., delivered the opinion of the court.- Upon the former appeal of this case, it was reversed for the granting of erroneous instructions on the part of the state; but it was held by the court, and the opinion so states, that there was no proof of any conspiracy, and that the evidence showed conclusively that the meeting of the various parties on the morning of the homicide was wholly accidental. In the light of that opinion, -it was error to admit testimony showing that the defendant and other named individuals were at Randall’s house on the day of the homicide, and before it occurred. It was error to permit the introduction of testimony on the part of the state showing that the companions of defendant on the occasion in question were armed with sticks, and to admit proof that such sticks were deadly weapons, or were capable of inflicting great bodily harm. It was error to admit testimony that others than the defendant and the deceased participated in the homicide. It was error to permit the witness Smith to testify as to why defendant’s companion was at his store on the day before the homicide, and not permit Gillespie to explain how it happened that he was with the defendant on the occasion in question. If, as decided on the former appeal, there was no conspiracy, it follows that the testimony referred to was incompetent and without probative force, and could only serve the purpose of prejudicing the minds of the jury by inducing them to believe that the deceased met his death in pursuance of a preconcerted plan concocted by defendant and others. Ror this reason, the court should have followed the intimation of the former opinion herein, and restricted the testimony to the immediate scene of the killing, and to such acts and conduct of the combatants engaged therein as might shed light thereon. The assignment of error predicated of the alleged action of the court in drawing the special venire is not presented with sufficient definiteness to enable us to pass on it. And as the other [54] assignments may not arise on another trial, we do not deem it necessary to decide them at this time. Reversed and remanded.