Cates v. State

On Motion for Rehearing.

The state again urges the admissibility of that part of Mrs. Burton’s will devising property to appellant, the sole theory being that such act creates the presumption of a conspiracy between herself and appellant to kill deceased. It is admitted that appellant was in jail at the time and knew nothing of the making of such will. If, under the same circumstances as attended the making of said will, Mrs. Burton had made a complete written confession of complicity with appellant in the killing of her- husband, it would have been held inadmissible as against this appellant. If a direct admission of their acting together, made by her, could not be used to establish appellant’s guilt, the indirect method of inference or deduction from some other written statement of hers, made after the homicide and not in the presence óf appellant could have no greater standing as evidence nor be any more competent.

Under this record said will was inadmissible, and the motion for rehearing will be overruled.