Armstead v. State

White, Presiding Judge.

Alexander Hardin and appellant were jointly indicted for the murder of Sandy Armstead, who was the husband of this appellant. On the separate trial of this •appellant, the prosecution, over the objection of the defendant, was allowed to prove that subsequent to the killing the co-■defendant, Alexander Hardin, was taken by the deputy sheriff, Bramin, to the neighborhood of the place of the killing, and that Hardin pointed out a place to the deputy, near the house of deceased, where the deputy sheriff found the hull of an empty gun cartridge, which fitted Hardin’s gun.

It is a general and well established rule of law that a man’s confessions or admissions of guilt can only be used against himself (Draper v. The State, 22 Texas, 400), and it is equally as well settled that the declarations of a co-conspirator, made in the absence of the defendant and after the consummation of the conspiracy, are not admissible in evidence against the defendant. (Ricks v. The State, 19 Texas Ct. App., 308.) Acts and declarations of one co-conspirator are only admissible against another, when such other was not present at the time they were made, in cases where such acts and declarations were made and done during the pendency of the criminal enterprise and in furtherance of its objects. If they took place at a subsequent period, and are therefore merely narrative of past occurrences, they are to be rejected. (1 Greenlf. Ev., section 111; Preston v. The State, 4 Texas Ct. App., 186; Cox v. The State, 8 Texas Ct. App., 256; Smith v. The State, 21 Texas Ct. App., 107; Meyers v. The State, 6 Texas Ct. App., 1; Davis v. The State, 9 Texas Ct. App., 363; Avery v. The State, 10 Texas Ct. App., 199; Cohen v. The State, 11 Texas Ct. App., 153; Morris v. The State, 13 Texas Ct. App., 65; Long v. The State, Id., 211; Holden v. The State, 18 Texas Ct. App., 91.)

The evidence complained of was, under these rules, inadmissible, and the court erred in permitting the prosecution to introduce it over defendant’s objection.

Objection was made to the proof the acts and declarations of the co-defendant, Alex Hardin, to Emeline and Monroe Armstead, on the night of and a short time before the killing. It was testified by these children that Hardin had given them a dollar, telling them at the time that their pa would get killed some night, and that he wanted them to tell the folks that he was not there, but left early. Appellant was not present when this occurrence took place. We are of opinion this testimony would be admissible provided the conspiracy between the parties to commit the murder is established; because it would seem, in that event, to be in furtherance of the objects of the conspirators, which would be to prevent discovery of their connection with the crime about to be perpetrated.

As to the action of the court in permitting the prosecution to propound leading questions to the witness, Emeline Armstead, the learned judge says the witness was not bright, and it was almost impossible to obtain the evidence without to some extent leading the witness. An exception to the general rule, that leading questions can not be propounded on direct examination, is where the witness is of weak memory. (Whart. Crim. Ev. eighth edition, section 454a). We can perceive no error in this action.

Hone of the matters complained of in any of the other several bills of exception are deemed material, as presented, and they will not, therefore, be discussed.

There is another matter, however, hot mentioned, complained of nor alluded to, which in our opinion constitutes fundamental error, requiring a reversal of the judgment. It is the verdict rendered by the jury, and upon which the judgment is based. We find it copied into the judgment in the following words, viz.: “We, the jury, find the defendant guilty as charged in the indictment, and assess the punishment at confinement in the State penitentiary for life.”

Opinion delivered October 23, 1886.

It is expressly required by our statute that, “ If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree.” (Penal Code, Article 607.) In Buster’s case, 42 Texas, 315, where the verdict was, “We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment to be hung by the neck until dead,” it was held that the verdict was a nullity and would not support a judgment of conviction for murder of the first degree. (See also Clark’s Crim. Law, page 214, note “Verdict.”) In Woldridge’s case, 13 Texas Court of Appeals, 444, the question is thoroughly discussed, and amongst other conclusions announced is, quoting from Mr. Bishop, that “unless they (the jury) find the degree in a manner patent on the face of the verdict, without help from the particular terms of the indictment, it is void. Ho judgment can be rendered thereon, but a second trial must be ordered.” (2 Bish. Crim. Proc., section 595, and note, with authorities cited; Sanders v. The State, 18 Texas Ct. App.,372; Dubose v. The State, 13 Texas Ct. App., 418.)

For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.