HURT, Presiding Judge.
On the night of April 28,1892, W. T. Sharman was assassinated at his home in Denison, Grayson County. He was shot while asleep in the same bed with his wife and a 3-year-old child. The weapon used was a shot gun, loaded with buck shot, a number of which lodged in the body of deceased. Death was almost instantaneous. The only word uttered by him after the shot was “ Mama.” A ladder, the end of which was wrapped in cloth, was found resting against the roof of the house, near a window. The assassin had evidently stood on the ladder, and fired the fatal shot over the upper sash of the window, which was lowered from the top. There was no light in the room, no eye-witness to the dastardly deed, and the murderer escaped unseen. That the homicide was a cold-blooded, premeditated murder is evident.
Appellant, Charles Luttrell, was indicted for the homicide, and on the 25th day of October, 1892, was tried and convicted of murder in the first degree, and the death penalty was assessed. Judgment being entered on the verdict, he appeals to this court.
Was appellant the real assassin ? Has the State shown by competent, legal evidence, with a correct application of the law thereto, that appellant was the murderer beyond a reasonable doubt, or to this court to a reasonable certainty ? If so, then this judgment should be affirmed.
Counsel for appellant, with great force, contend, (1) that incompetent
evidence was, over his objections, admitted against him, in this, that the acts and declarations of Carlisle, Fogg, and Poe, done and made in his absence, were not competent evidence, because no conspiracy had been shown; (2) that there was error in the charge submitting to the jury the issue of conspiracy, because conspiracy was not shown by the evidence. If a conspiracy between Carlisle, Fogg, Poe, and appellant was prima facie shown, the acts and declarations of Carlisle, Fogg, and Poe, done and made in furtherance of the common design, and pending the conspiracy, were competent evidence against appellant. Whether a prima facie conspiracy was established was a fact to be determined by the court. On the other hand, if such conspiracy was sufficiently shown to warrant the court’s action in admitting the acts and declarations of Carlisle, Fogg, and Poe, then, evidently, there was no injury done appellant by the court in submitting the issue of conspiracy vel non to the jury. Why ? Because notwithstanding the court may have been justified, from the evidence, in believing that such a conspiracy had been shown, still the fact of conspiracy being submitted to the jury, they might have taken another view of the evidence relied upon to establish it, failed to believe it had been established, and rejected all of the acts and declarations of Carlisle, Fogg, and Poe. It was the duty of the court to submit this issue to the jury. Appellant, on the issue of conspiracy, had two chances—first, with the court, and finally, with the jury. If, however, the conspiracy was not shown, the error of the court in admitting the acts and declarations of Carlisle, Fogg, and Poe was not cured by submitting the issue of conspiracy to the jury. The question, therefore, is, was the conspiracy sufficiently shown to warrant the court in admitting in evidence the acts and declarations of the supposed conspirators ?
A conspiracy is proved either expressly or by the proof of facts from which it may be inferred. It is seldom proved expressly, nor can a case be easily imagined in which that express proof is likely to occur, unless a person implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases, therefore,- the conspiracy is proved by circumstantial evidence, namely, by proof of facts from which the conspiracy may fairly be inferred. The acts and declarations of a conspirator may be introduced in evidence before the conspiracy is established, but the conspiracy must be proved. Was it shown in this case ? Eliminating the voluntary confessions of the appellant, made calmly and deliberately, to Robertson and Jones, the proof of conspiracy would, we think, be sufficient; and when viewed in the light of these confessions, the proof of conspiracy becomes clear, and we think very cogent—at least sufficiently strong as to create a prima facie case of conspiracy; and hence there was no error in admitting in evidence the acts and declarations of Carlisle, Fogg, and Poe.
The charge of the court relating to the admission in evidence of the acts and declarations of Carlisle, Fogg, and Poe is objected to. The objectionable paragraph reads: “ I have admitted before you evidence of acts and declarations of J. F. Fogg, John Poe, and John T. Carlisle, upon the theory that they were coconspirators with defendant; but the action ■of the court in admitting this evidence means only that sufficient evidence ■of the conspiracy was offered to permit the testimony to go to you, for you to determine from the evidence whether there was in fact such conspiracy.” This paragraph of the third charge is objected to, “ because it impressed the jury with the belief that in the opinion of the judge the theory of conspiracy was established by the evidence.” When read with the remainder of paragraph 3 of the charge, there is no error. On the contrary, it was the duty of the judge to tell the jury that though he had received the evidence (acts and declarations of conspiracy), yet they had the right to determine whether in fact a conspiracy had been estafr lished, and if not established, not to consider as evidence against the appellant the acts and declarations of Carlisle, Fogg, and Poe. This duty was performed in plain and simple language, which could not have been misunderstood by the jury.
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HURT, Presiding Judge.
On the night of April 28,1892, W. T. Sharman was assassinated at his home in Denison, Grayson County. He was shot while asleep in the same bed with his wife and a 3-year-old child. The weapon used was a shot gun, loaded with buck shot, a number of which lodged in the body of deceased. Death was almost instantaneous. The only word uttered by him after the shot was “ Mama.” A ladder, the end of which was wrapped in cloth, was found resting against the roof of the house, near a window. The assassin had evidently stood on the ladder, and fired the fatal shot over the upper sash of the window, which was lowered from the top. There was no light in the room, no eye-witness to the dastardly deed, and the murderer escaped unseen. That the homicide was a cold-blooded, premeditated murder is evident.
Appellant, Charles Luttrell, was indicted for the homicide, and on the 25th day of October, 1892, was tried and convicted of murder in the first degree, and the death penalty was assessed. Judgment being entered on the verdict, he appeals to this court.
Was appellant the real assassin ? Has the State shown by competent, legal evidence, with a correct application of the law thereto, that appellant was the murderer beyond a reasonable doubt, or to this court to a reasonable certainty ? If so, then this judgment should be affirmed.
Counsel for appellant, with great force, contend, (1) that incompetent
evidence was, over his objections, admitted against him, in this, that the acts and declarations of Carlisle, Fogg, and Poe, done and made in his absence, were not competent evidence, because no conspiracy had been shown; (2) that there was error in the charge submitting to the jury the issue of conspiracy, because conspiracy was not shown by the evidence. If a conspiracy between Carlisle, Fogg, Poe, and appellant was prima facie shown, the acts and declarations of Carlisle, Fogg, and Poe, done and made in furtherance of the common design, and pending the conspiracy, were competent evidence against appellant. Whether a prima facie conspiracy was established was a fact to be determined by the court. On the other hand, if such conspiracy was sufficiently shown to warrant the court’s action in admitting the acts and declarations of Carlisle, Fogg, and Poe, then, evidently, there was no injury done appellant by the court in submitting the issue of conspiracy vel non to the jury. Why ? Because notwithstanding the court may have been justified, from the evidence, in believing that such a conspiracy had been shown, still the fact of conspiracy being submitted to the jury, they might have taken another view of the evidence relied upon to establish it, failed to believe it had been established, and rejected all of the acts and declarations of Carlisle, Fogg, and Poe. It was the duty of the court to submit this issue to the jury. Appellant, on the issue of conspiracy, had two chances—first, with the court, and finally, with the jury. If, however, the conspiracy was not shown, the error of the court in admitting the acts and declarations of Carlisle, Fogg, and Poe was not cured by submitting the issue of conspiracy to the jury. The question, therefore, is, was the conspiracy sufficiently shown to warrant the court in admitting in evidence the acts and declarations of the supposed conspirators ?
A conspiracy is proved either expressly or by the proof of facts from which it may be inferred. It is seldom proved expressly, nor can a case be easily imagined in which that express proof is likely to occur, unless a person implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases, therefore,- the conspiracy is proved by circumstantial evidence, namely, by proof of facts from which the conspiracy may fairly be inferred. The acts and declarations of a conspirator may be introduced in evidence before the conspiracy is established, but the conspiracy must be proved. Was it shown in this case ? Eliminating the voluntary confessions of the appellant, made calmly and deliberately, to Robertson and Jones, the proof of conspiracy would, we think, be sufficient; and when viewed in the light of these confessions, the proof of conspiracy becomes clear, and we think very cogent—at least sufficiently strong as to create a prima facie case of conspiracy; and hence there was no error in admitting in evidence the acts and declarations of Carlisle, Fogg, and Poe.
The charge of the court relating to the admission in evidence of the acts and declarations of Carlisle, Fogg, and Poe is objected to. The objectionable paragraph reads: “ I have admitted before you evidence of acts and declarations of J. F. Fogg, John Poe, and John T. Carlisle, upon the theory that they were coconspirators with defendant; but the action ■of the court in admitting this evidence means only that sufficient evidence ■of the conspiracy was offered to permit the testimony to go to you, for you to determine from the evidence whether there was in fact such conspiracy.” This paragraph of the third charge is objected to, “ because it impressed the jury with the belief that in the opinion of the judge the theory of conspiracy was established by the evidence.” When read with the remainder of paragraph 3 of the charge, there is no error. On the contrary, it was the duty of the judge to tell the jury that though he had received the evidence (acts and declarations of conspiracy), yet they had the right to determine whether in fact a conspiracy had been estafr lished, and if not established, not to consider as evidence against the appellant the acts and declarations of Carlisle, Fogg, and Poe. This duty was performed in plain and simple language, which could not have been misunderstood by the jury.
The remainder of the third paragraph of the charge reads: “If two or more persons enter into an agreement to kill any reasonable creature in being in this State, this in law constitutes a conspiracy to commit the crime of murder, and all parties to such agreement are coconspirators. In order to constitute a conspiracy, there must be a positive agreement to commit the crime—that is, to do the act of killing. It is not necessary for the State to prove that the parties actually met together and made the agreement to kill. It is sufficient if the evidence shows that they performed different parts or acts, all contributing to the accomplishment of the common design. The agreement to commit the crime may. be proved by circumstantial evidence, in like manner as other facts may be proved by such evidence, and to be governed by the same rules as are prescribed in the seventh paragraph of this charge for determining the sufficiency and conclusiveness required in cases depending upon circumstantial evidence. The fact of conspiracy can not be proved by the declarations of any one of the conspirators—that is, except as to the one making the declarations; but when the fact of conspiracy to commit a crime has been established by competent and satisfactory evidence, the declarations and acts of any one of the coconspirators are admissible in evidence against any of the parties to the agreement, for the purpose of establishing the commission of the crime. But to be admissible for such purpose, such acts must have been done and such declarations made during the pendency of the conspiracy, and in the furtherance of the accomplishment of the common purpose—that is, such acts must have been performed and
declarations made after the agreement to commit the crime was entered into, and before the crime was committed.”
Appellant complains of the fourth charge, because it permitted the jury to hear and consider as evidence against appellant acts and declarations of Poe, Fogg, and Carlisle, when the evidence may not have shown them all to be conspirators. The charge complained of is as follows:
“ If you believe from the evidence that the defendant, Charles Luttrell, entered into a conspiracy (as charged in paragraph 3 of this charge) with J. F. Fogg, John T. Carlisle, and John Poe, or either of them, to kill W. T. Sharman, then you may consider as evidence against defendant any acts or declarations of J. F. Fogg, John Poe, and John T. Carlisle, or either of them, which have been detailed in evidence before you. But to be so considered by you, such acts must have been done and such declarations must have been made in the furtherance of the common purpose, during the pendency of such conspiracy, if you believe there was such conspiracy. If, however, the evidence does not satisfy your minds, beyond a reasonable doubt, that defendant, Charles Luttrell, did enter into an agreement with J. F. Fogg, John T. Carlisle, and John Poe, or either of them, to kill W. T. Sharman, then you will discard from your consideration in this case all the acts and declarations of the said Fogg, Carlisle, and Poe, or either of them, that have been placed in evidence before you. If you believe that defendant did enter into such conspiracy, as aforesaid, with Fogg, Carlisle, and Poe, or either of them, to kill W. T. Sharman, but do not believe from the evidence that the declarations and acts of said Fogg, Carlisle, and Poe, or either of them, or that any act or declaration of either of said parties in evidence before you, was done or made in the furtherance of the common purpose, and during the pendency of said conspiracy, if there was a conspiracy, then you will discard all such acts and declarations of either of said parties in evidence before you as does not come within these requirements.”
When we consider the charge as a whole, it is very questionable whether it is obnoxious to the above objection. But concede the objection, there being no exception reserved at the time, was there probable injury resulting from the failure of the judge to nicely guard this point by instructing the jury not to receive as evidence the acts or declarations of the party not shown to be in the conspiracy ? We are of opinion there was no injury resulting to defendant, because the evidence clearly shows them all coconspirators with defendant.
We have not written upon all the questions presented in argument and brief for appellant, but we have given them careful attention. We have to say of this case, that appellant has had a fair trial in all particulars. The learned judge who presided was remarkably careful, used great pains to secure to him all legal rights, and to guard him against injury from
every source. If Jones and Robertson are worthy of belief, he is evidently guilty of willful, deliberate, and premeditated murder, and should suffer the extreme penalty of the law; and the judgment is affirmed.
Affirmed.
Judges all present and concurring.