Willson, Judge.
Eliminating surplusage from that portion ©f the indictment which charges the defendant and Newt Harris with being accomplices to the murder of James H. Black, it reads as follows: “ That about November 12, 1884, in said county and State, one Mack Crook and one Newt Harris did unlawfully, and with their express malice aforethought, advise and encourage the said John Middleton to commit said offense of murder before the said John Middleton did kill and murder the said James H. Black, and did prepare and furnish said John Middleton with a gun for the purpose of aiding and assisting the said John Middleton in killing and murdering the said James H. Black as aforesaid; and the said Mack Crook and the said Newt Harris was hot present when the said John Middleton killed and murdered the said James H. Black as aforesaid.” We regard the above as a single count, and while it is not framed in strict accordance with precedent, and is not critically correct, it is, in our opinion, substantially sufficient, and the trial court did not err in overruling the defendant’s exceptions to it.
In a prosecution against a defendant charged as an accomplice, it is essential for the State to establish the guilt of the principal of the crime charged to have been committed by him. In this case it was essential for the State to establish the guilt of John Middleton, the alleged principal of the murder of James H. Black. Without proof of Middleton’s guilt as principal, the defendant could not be convicted as an accomplice. In establishing the guilt of Middleton any evidence which would have been competent, had he been on trial, was competent on the trial of the defendant as an accomplice, not for the purpose of proving that defendant was an accomplice, but for the purpose solely of proving that Middleton committed the murder, and the degree of the murder. (Penal Code, art. 89; Arnold v. The State, 9 Texas Ct. App., 435; Poston v. The State, 12 Texas Ct. App., 408; Whart. Cr. Ev., sec. 602.)
If Middleton had been on trial his detailed confession made to Holman would have been admissible in evidence against him, and was therefore admissible evidence in this case to prove his guilt as principal in the murder of Black, but not to prove that the defendant was an accomplice in that murder, or [240]*240had any guilty connection with it. It was not error, we think, to admit the testimony of the witness Holman, detailing the confession of Middleton. In the charge to the jury, the purpose for which this testimony was admitted was clearly explained to the jury, accompanied by the emphatic instruction that it could not be considered against the defendant for any purpose, but could only be considered for the purpose of showing that Middleton may have killed Black. These remarks are applicable also to the testimony of the witness Christopher, detailing Middleton’s confession made to him of the murder of Black. (Simms v. The State, 10 Texas Ct. App., 131.)
It is claimed by defendant as error that the acts, declarations and statements of Hewt Harris, and the conversation between Holman, Harris and Middleton, as detailed by the witness Holman, were admitted in evidence against him, he not having been present at the time of the transpiring of said acts, declarations, statements and conversation, and it not being shown that a conspiracy existed between him and Harris, Holman and Middleton to murder Black. This testimony was clearly hearsay, and was inadmissible except upon the predicate of the existence of such a conspiracy. It was the province of the trial judge primarily to determine whether the predicate which would render the testimony admissible had been established by the evidence. He concluded that the predicate of conspiracy had been laid, and admitted said téstimony. We shall not determine whether or not this conclusion of the trial judge is sustained by the evidence. It is only necessary to say that the sufficiency of the predicate laid for the admission of said testimony was a question in the case and a vital one, and that question should have been submitted to the jury with instructions to disregard said testimony in case they were not satisfied from other evidence in the case, that the conspiracy upon which the admissibility of said testimony depended had been proved. (Loggins v. The State, 8 Texas Ct. App., 434.)
The jury should, in this connection, have been further instructed that such conspiracy could not be established by the acts or declarations of a co-conspirator made after the consummation of the offense and in the absence of the defendant. (Cohea v. The State, 17 Texas Ct. App., 153; Menges v. The State, 25 Texas Ct. App., 710.) With respect to said testimony the charge of the court is materially defective in the particulars above mentioned. Special charge fourteen, requested by the [241]*241defendant, reads as follows: “Ho acts or declarations of John Middleton or Newt Harris or Lewis Holman, made after the killing' of Black, can be considered by you in determining whether the defendant furnished or assisted in furnishing the gun to John Middleton for the purpose of killing Black, and unless you find from the evidence some testimony outside of such declarations tending to connect Mack Crook with the offense, you will find him not guilty.” This charge should, we think, have been given. It was abstractly correct, and was called for by the evidence in the case.
Defendant’s bill of exceptions number thirty-four, relating to the remarks of the trial judge, made to counsel in presence and hearing of the jury, upon the admissibility of certain evidence offered by the State, is well taken. The remarks were in violation of article 729 of the Code of Criminal Procedure, and might have prejudiced the rights of the defendant. Pending the discussion and decision of the admissibility of said testimony, the jury should have been retired from the court room. (Moncallo v. The State, 12 Texas Ct. App., 171; Wilson v. The State, 17 Texas Ct. App., 525; Rodrigues v. The State, 23 Texas Ct. App., 503.)
It was not error to permit the State to prove that the general reputation of the witness Enlow for truth and veracity was good. Said witness was a stranger in the county of the trial, and his credibility had been attacked by the defendant by showing, or attempting to show that he had made statements contradictory to his testimony on the trial. (Coombs v. The State, 17 Texas Ct. App., 258; Phillips v. The State, 19 Texas Ct. App., 158; Williams v. The State, 24 Texas Ct. App., 637.)
It was not error to admit in evidence the testimony of the witness Threlkeld, taken before the examining court. A proper predicate was laid for the admission of said testimony. It was shown that said witness resided beyond the limits of this State. The fact that he was a non-resident of this State at the time said testimony was taken does not render it inadmissible. (Code Crim. Proc. arts., 772, 773, 774; Willson’s Crim. Stats., sec. 2535.)
It was not error to refuse to permit the defendant to prove the declarations of Jack Duncan in regard to the gun. This was hearsay testimony. Defendant should have caUed Jack Duncan to testify about the gun.
There are some other exceptions reserved by the defendant [242]*242to the rulings of the' court admitting testimony offered by the State, but they are either embraced in the exceptions already discussed, or are immaterial, and hence we will not specifically notice them. We have discussed and determined such of the exceptions as in our opinion are of any importance.
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Willson, Judge.
Eliminating surplusage from that portion ©f the indictment which charges the defendant and Newt Harris with being accomplices to the murder of James H. Black, it reads as follows: “ That about November 12, 1884, in said county and State, one Mack Crook and one Newt Harris did unlawfully, and with their express malice aforethought, advise and encourage the said John Middleton to commit said offense of murder before the said John Middleton did kill and murder the said James H. Black, and did prepare and furnish said John Middleton with a gun for the purpose of aiding and assisting the said John Middleton in killing and murdering the said James H. Black as aforesaid; and the said Mack Crook and the said Newt Harris was hot present when the said John Middleton killed and murdered the said James H. Black as aforesaid.” We regard the above as a single count, and while it is not framed in strict accordance with precedent, and is not critically correct, it is, in our opinion, substantially sufficient, and the trial court did not err in overruling the defendant’s exceptions to it.
In a prosecution against a defendant charged as an accomplice, it is essential for the State to establish the guilt of the principal of the crime charged to have been committed by him. In this case it was essential for the State to establish the guilt of John Middleton, the alleged principal of the murder of James H. Black. Without proof of Middleton’s guilt as principal, the defendant could not be convicted as an accomplice. In establishing the guilt of Middleton any evidence which would have been competent, had he been on trial, was competent on the trial of the defendant as an accomplice, not for the purpose of proving that defendant was an accomplice, but for the purpose solely of proving that Middleton committed the murder, and the degree of the murder. (Penal Code, art. 89; Arnold v. The State, 9 Texas Ct. App., 435; Poston v. The State, 12 Texas Ct. App., 408; Whart. Cr. Ev., sec. 602.)
If Middleton had been on trial his detailed confession made to Holman would have been admissible in evidence against him, and was therefore admissible evidence in this case to prove his guilt as principal in the murder of Black, but not to prove that the defendant was an accomplice in that murder, or [240]*240had any guilty connection with it. It was not error, we think, to admit the testimony of the witness Holman, detailing the confession of Middleton. In the charge to the jury, the purpose for which this testimony was admitted was clearly explained to the jury, accompanied by the emphatic instruction that it could not be considered against the defendant for any purpose, but could only be considered for the purpose of showing that Middleton may have killed Black. These remarks are applicable also to the testimony of the witness Christopher, detailing Middleton’s confession made to him of the murder of Black. (Simms v. The State, 10 Texas Ct. App., 131.)
It is claimed by defendant as error that the acts, declarations and statements of Hewt Harris, and the conversation between Holman, Harris and Middleton, as detailed by the witness Holman, were admitted in evidence against him, he not having been present at the time of the transpiring of said acts, declarations, statements and conversation, and it not being shown that a conspiracy existed between him and Harris, Holman and Middleton to murder Black. This testimony was clearly hearsay, and was inadmissible except upon the predicate of the existence of such a conspiracy. It was the province of the trial judge primarily to determine whether the predicate which would render the testimony admissible had been established by the evidence. He concluded that the predicate of conspiracy had been laid, and admitted said téstimony. We shall not determine whether or not this conclusion of the trial judge is sustained by the evidence. It is only necessary to say that the sufficiency of the predicate laid for the admission of said testimony was a question in the case and a vital one, and that question should have been submitted to the jury with instructions to disregard said testimony in case they were not satisfied from other evidence in the case, that the conspiracy upon which the admissibility of said testimony depended had been proved. (Loggins v. The State, 8 Texas Ct. App., 434.)
The jury should, in this connection, have been further instructed that such conspiracy could not be established by the acts or declarations of a co-conspirator made after the consummation of the offense and in the absence of the defendant. (Cohea v. The State, 17 Texas Ct. App., 153; Menges v. The State, 25 Texas Ct. App., 710.) With respect to said testimony the charge of the court is materially defective in the particulars above mentioned. Special charge fourteen, requested by the [241]*241defendant, reads as follows: “Ho acts or declarations of John Middleton or Newt Harris or Lewis Holman, made after the killing' of Black, can be considered by you in determining whether the defendant furnished or assisted in furnishing the gun to John Middleton for the purpose of killing Black, and unless you find from the evidence some testimony outside of such declarations tending to connect Mack Crook with the offense, you will find him not guilty.” This charge should, we think, have been given. It was abstractly correct, and was called for by the evidence in the case.
Defendant’s bill of exceptions number thirty-four, relating to the remarks of the trial judge, made to counsel in presence and hearing of the jury, upon the admissibility of certain evidence offered by the State, is well taken. The remarks were in violation of article 729 of the Code of Criminal Procedure, and might have prejudiced the rights of the defendant. Pending the discussion and decision of the admissibility of said testimony, the jury should have been retired from the court room. (Moncallo v. The State, 12 Texas Ct. App., 171; Wilson v. The State, 17 Texas Ct. App., 525; Rodrigues v. The State, 23 Texas Ct. App., 503.)
It was not error to permit the State to prove that the general reputation of the witness Enlow for truth and veracity was good. Said witness was a stranger in the county of the trial, and his credibility had been attacked by the defendant by showing, or attempting to show that he had made statements contradictory to his testimony on the trial. (Coombs v. The State, 17 Texas Ct. App., 258; Phillips v. The State, 19 Texas Ct. App., 158; Williams v. The State, 24 Texas Ct. App., 637.)
It was not error to admit in evidence the testimony of the witness Threlkeld, taken before the examining court. A proper predicate was laid for the admission of said testimony. It was shown that said witness resided beyond the limits of this State. The fact that he was a non-resident of this State at the time said testimony was taken does not render it inadmissible. (Code Crim. Proc. arts., 772, 773, 774; Willson’s Crim. Stats., sec. 2535.)
It was not error to refuse to permit the defendant to prove the declarations of Jack Duncan in regard to the gun. This was hearsay testimony. Defendant should have caUed Jack Duncan to testify about the gun.
There are some other exceptions reserved by the defendant [242]*242to the rulings of the' court admitting testimony offered by the State, but they are either embraced in the exceptions already discussed, or are immaterial, and hence we will not specifically notice them. We have discussed and determined such of the exceptions as in our opinion are of any importance.
Numerous objections are made by counsel for the defendant to the charge of the court. We shall notice such only as appear to us to be maintainable. It was unnecessary and improper to define in the charge an assault, and a battery, though this was an immaterial errror; but it was excepted to by the defendant at the trial, and thereby became reversible error. An assault and battery was necessarily included in the act of killing, and in defining murder a sufficient definition of assault and battery was embraced for the purposes of this case, and a further and specific definition of the offense of assault and battery could only tend to encumber the charge, and confuse the minds of the jury with matter not pertinent to the issue being tried by them.
In all trials for murder it is the imperative duty, of the court to instruct the jury as to the meaning of “malice,” or “malice aforethought.” It is fundamental error to omit such instruction, and a definition of “express malice” will not cure the omission. (Willson’s Crim. Stat., sec. 1061.) In this case the charge fails to explain the legal meaning of “malice aforethought.”
In the charge “express malice” is defined to be “where one with a calm, sedate and deliberate mind and formed design kills another.” This definition is incomplete and incorrect. Justifiable or excusable homicide may be committed with a calm, sedate and deliberate mind, and a formed design to kill another. The definition should have been “where one with a calm, sedate and deliberate mind and a formed design unlawfully kills another,” etc. (Pickens v. The State, 13 Texas Ct. App., 351.)
Upon the issue of alibi as to the principal, Middleton, the charge is defective. It requires the jury to believe from the evidence that Middleton was not present at the time and place that Black was killed, when the correct rule is that if the evidence raised in the minds of the jury a reasonable doubt as to his presence at said.time and place, he should be found not guilty. This imperfect charge was excepted to by the defend[243]*243ant, and is therefore reversible error. (Wilson’s Or. Statutes, sec. 2343.)
Opinion delivered February 9, 1889.
In other respects than those we have specified, we think the charge of the court is full, fair, correct, and remarkably pertinent to the facts, and plain to the common understanding. It explains very fully and clearly the rules relating to accomplice testimony, defining who are accomplices within the meaning of Article 741, Code Crim. Proc., and it applies those rales not only to the defendant’s connection with the offense, but to the connection therewith of the alleged principal, Middleton.
It was not essential, though proper, that the charge of the court should instruct the jury in the forms of verdicts which they might render in the case. (Williams v. The State, 24 Texas Ct. App., 637.) The form of a verdict of guilty, as prescribed in this case in the charge of the court, is, we think, unobjectionable, and the verdict is in accordance therewith. The indictment did not charge the defendant with the murder of Black, but with being an accomplice to said murder. Being an accomplice to a crime is a distinct offense, specifically defined In our code. (Penal Code, Art. 79.) The accomplice is punishable in the same manner as the principal offender. (Ibid, Art. 80.) The jury could not legally have found the defendant guilty' of any offense but that charged against him in the indictment, which was the offense of being an accomplice to murder in the first degree. We are unable to perceive the force of the objections made to the verdict.
As to the sufficiency of the evidence to support the conviction, it being unnecessary to a disposition of this appeal that we should-pass upon that question, we shall refrain from doing so, as on another trial of the case the evidence may be essentially different from that now before us,
Because of the several errors in the rulings and charge of the trial court, which we have specified, the judgment is reversed and the cause is remanded.
Beversed and remanded.
Judge Hurt is of the opinion, that being an accomplice to a crime is not a specific offense; that the accomplice is guilty of the offense committed by the principal.