BROOKS, Judge.
Appellant was convicted of murder in the second degree, and her punishment assessed at confinement in the penitentiary for a term of eleven years. This is a companion case to that of Hudson
v. State, 43 Texas Crim. Rep., 420, and the facts as stated in that opinion are substantially those disclosed by this record.
By bill number 1 complaint is made that, after J. E. Hammett had testified in chief for the State, appellant offered to prove by said witness that when he arrested B. D. Hudson on the night of the homicide he immediately informed Hudson that he arrested him for the murder of I. J. Martin, and that said Hudson then stated that he killed Martin, and that he was glad of it, and that he ought to have killed him before he did, and did not" say anything about any other person being implicated therein; that said witness would have testified to said facts. The State objected to this testimony, which the court sustained, on the ground that it was hearsay, and because one conspirator could not testify for the other. Appellant further offered to prove by said witness that upon his return to "the house with Hudson, after arresting him, and more than three hours after the killing, and when W. D. Hudson, deputy sheriff, went into the house and brought out a pistol to the buggy, where witness and B. D. Hudson were, and then said pistol was exhibited, and it showed that only one shot had been fired out of it, said co.defendant, Hudson, then stated to witness that he (Hudson) had used another pistol in shooting deceased, and had fired the same twice, and that such other pistol was in the house; that said witness would have testified to said facts. Appellant offered further to prove that, after said witness started to Honey Grove with B. D. Hudson, he stated to witness that he had used two pistols in shooting deceased; that he shot him twice with one pistol, and then the pistol hung and would not revolve, and he got another pistol and shot him once with it; that he then left both pistols in the house; that it was upon information received by witness from B. D. Hudson that he went in the house and got the other pistol; that defendant offered the foregoing evidence, after the witness had sworn that he and his deputy W. D. Hudson had arrested B. D. Hudson and brought him back to the house where Martin was killed; that only witness and W. D. Hudson were with B. D. Hudson, and no one else was present, and W. D. Hudson had gotten information that the pistol or pistols with which the killing was done were in the house, and after the witness had said, “Old man Hudson had told us,” and had been stopped by the court at the instance of the State, who told the witness to tell what he and his deputy did, and not to state what anybody said; and said Hammett would have testified to said facts, etc. The court did not err in excluding any of the testimony offered by appellant. The bill does not show that the evidence offered was any part or parcel of the res gestee, but, on the other hand, it clearly shows that it is not, since the same would be the acts and declarations of a co-conspirator, made long subsequent to the consummation of the conspiracy, to wit, the homicide. This character of testimony can not be introduced. ■ Wright v. State, 10 Texas Crim. App., 476; Pharr v. State, Id., 485; Draper v. State, 22 Texas, 400. However, we note that appellant in his brief contends that this evidence was part of a conver
sation drawn out by the State. The bill does not support this position. We find this statement in the bill: “The State had only proved by said witness on that point the fact of arrest, which arrest was made after 12 p. m., the homicide having occurred about 9 p. m.” The bill refers to the statement of facts for further information, and a close inspection of the facts supports the above statement copied from the bill. We note the insistence of the Assistant Attorney-General that the bill is defective, in that the same does not show the purpose for which the evidence was tendered. This alone disposes of the bill, since it is a necessary requisite, and such fact is not stated in the bill. Bailey v. State, 37 Texas Crim. Rep., 579; Childers v. State, 37 Texas Crim. Rep., 392. Furthermore, the bill does not state that the same was a part of a conversation introduced by the State, nor is the predicate authenticated or certified by the judge that the same was a part of a conversation elicited by the State.
Nor
does appellant state in his bill that said evidence was admissible and tendered for that purpose. We have heretofore held that the bill which excepts to the exclusion of evidence that only becomes admissible upon a proper predicate laid can not be revised, unless the bill fully shows the predicate which rendered the evidence admissible. Highsmith v. State, 41 Texas Crim. Rep., 32. The evidence could not be admissible on the ground that this was a case of circumstantial evidence, and that perhaps some one else killed decedent, since" the evidence shows that appellant, acting together with her códefendant, R. D. Hudson, killed deceased; and hence the declarations of R. D. Hudson that he killed deceased, with the reasons and wherefores of the same, would not be competent evidence going to exculpate this defendant.
Bill number 2 complains that the court erred in admitting evidence as to the reputation of deceased, to the effect that deceased was a peaceable, law-abiding citizen, and that his reputation was that of a man that never swore or used an oath. It is the general rule that the character of deceased is not admissible in evidence, either for or against defendant, except where there is some predicate laid by the adverse party attacking that character, or where the character would traverse some issue presented by the evidence. The evidence discloses that appellant’s defense was predicated upon the fact that her father killed deceased without her knowledge and consent; that her father’s crime was predicated upon manslaughter, on account of insulting conduct offered by deceased to appellant, who was the daughter of codefendant, Hudson. There is a great deal of evidence introduced by appellant to support her contention. Clearly, then, it is proper and germane to meet this issue for the State to introduce the general reputation of deceased as being a peaceable and quiet man, to contradict appellant’s theory; and, furthermore, it is equally germane to prove his general reputation as being that of a man who did not curse and swear. It is a general proposition of criminal evidence that a party is always entitled to introduce his character as a circumstance to prove that he would not be guilty of the particular crime with which he is charged. Whart. Crim. Ev., sec. 60.
This applies as well to the State as an offensive matter as it does to the defendant as a defensive issue. Certainly, if appellant should be permitted to introduce evidence going to show that deceased had cursed her, accused her of infidelity and unchastity, and abused and mistreated her in various ways, then the State should be permitted, with equal justice, to introduce any legitimate evidence that tends to combat this issue made by defendant. Evidence going to establish the fact that he is a peaceable and quiet man, humane to his family, and a man whose reputation was that of one who did not curse or swear, is competent and proper, as tending to combat the issue raised by" appellant. Everett v. State (Texas Crim. App.),
24
S. W. Rep., 505.
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BROOKS, Judge.
Appellant was convicted of murder in the second degree, and her punishment assessed at confinement in the penitentiary for a term of eleven years. This is a companion case to that of Hudson
v. State, 43 Texas Crim. Rep., 420, and the facts as stated in that opinion are substantially those disclosed by this record.
By bill number 1 complaint is made that, after J. E. Hammett had testified in chief for the State, appellant offered to prove by said witness that when he arrested B. D. Hudson on the night of the homicide he immediately informed Hudson that he arrested him for the murder of I. J. Martin, and that said Hudson then stated that he killed Martin, and that he was glad of it, and that he ought to have killed him before he did, and did not" say anything about any other person being implicated therein; that said witness would have testified to said facts. The State objected to this testimony, which the court sustained, on the ground that it was hearsay, and because one conspirator could not testify for the other. Appellant further offered to prove by said witness that upon his return to "the house with Hudson, after arresting him, and more than three hours after the killing, and when W. D. Hudson, deputy sheriff, went into the house and brought out a pistol to the buggy, where witness and B. D. Hudson were, and then said pistol was exhibited, and it showed that only one shot had been fired out of it, said co.defendant, Hudson, then stated to witness that he (Hudson) had used another pistol in shooting deceased, and had fired the same twice, and that such other pistol was in the house; that said witness would have testified to said facts. Appellant offered further to prove that, after said witness started to Honey Grove with B. D. Hudson, he stated to witness that he had used two pistols in shooting deceased; that he shot him twice with one pistol, and then the pistol hung and would not revolve, and he got another pistol and shot him once with it; that he then left both pistols in the house; that it was upon information received by witness from B. D. Hudson that he went in the house and got the other pistol; that defendant offered the foregoing evidence, after the witness had sworn that he and his deputy W. D. Hudson had arrested B. D. Hudson and brought him back to the house where Martin was killed; that only witness and W. D. Hudson were with B. D. Hudson, and no one else was present, and W. D. Hudson had gotten information that the pistol or pistols with which the killing was done were in the house, and after the witness had said, “Old man Hudson had told us,” and had been stopped by the court at the instance of the State, who told the witness to tell what he and his deputy did, and not to state what anybody said; and said Hammett would have testified to said facts, etc. The court did not err in excluding any of the testimony offered by appellant. The bill does not show that the evidence offered was any part or parcel of the res gestee, but, on the other hand, it clearly shows that it is not, since the same would be the acts and declarations of a co-conspirator, made long subsequent to the consummation of the conspiracy, to wit, the homicide. This character of testimony can not be introduced. ■ Wright v. State, 10 Texas Crim. App., 476; Pharr v. State, Id., 485; Draper v. State, 22 Texas, 400. However, we note that appellant in his brief contends that this evidence was part of a conver
sation drawn out by the State. The bill does not support this position. We find this statement in the bill: “The State had only proved by said witness on that point the fact of arrest, which arrest was made after 12 p. m., the homicide having occurred about 9 p. m.” The bill refers to the statement of facts for further information, and a close inspection of the facts supports the above statement copied from the bill. We note the insistence of the Assistant Attorney-General that the bill is defective, in that the same does not show the purpose for which the evidence was tendered. This alone disposes of the bill, since it is a necessary requisite, and such fact is not stated in the bill. Bailey v. State, 37 Texas Crim. Rep., 579; Childers v. State, 37 Texas Crim. Rep., 392. Furthermore, the bill does not state that the same was a part of a conversation introduced by the State, nor is the predicate authenticated or certified by the judge that the same was a part of a conversation elicited by the State.
Nor
does appellant state in his bill that said evidence was admissible and tendered for that purpose. We have heretofore held that the bill which excepts to the exclusion of evidence that only becomes admissible upon a proper predicate laid can not be revised, unless the bill fully shows the predicate which rendered the evidence admissible. Highsmith v. State, 41 Texas Crim. Rep., 32. The evidence could not be admissible on the ground that this was a case of circumstantial evidence, and that perhaps some one else killed decedent, since" the evidence shows that appellant, acting together with her códefendant, R. D. Hudson, killed deceased; and hence the declarations of R. D. Hudson that he killed deceased, with the reasons and wherefores of the same, would not be competent evidence going to exculpate this defendant.
Bill number 2 complains that the court erred in admitting evidence as to the reputation of deceased, to the effect that deceased was a peaceable, law-abiding citizen, and that his reputation was that of a man that never swore or used an oath. It is the general rule that the character of deceased is not admissible in evidence, either for or against defendant, except where there is some predicate laid by the adverse party attacking that character, or where the character would traverse some issue presented by the evidence. The evidence discloses that appellant’s defense was predicated upon the fact that her father killed deceased without her knowledge and consent; that her father’s crime was predicated upon manslaughter, on account of insulting conduct offered by deceased to appellant, who was the daughter of codefendant, Hudson. There is a great deal of evidence introduced by appellant to support her contention. Clearly, then, it is proper and germane to meet this issue for the State to introduce the general reputation of deceased as being a peaceable and quiet man, to contradict appellant’s theory; and, furthermore, it is equally germane to prove his general reputation as being that of a man who did not curse and swear. It is a general proposition of criminal evidence that a party is always entitled to introduce his character as a circumstance to prove that he would not be guilty of the particular crime with which he is charged. Whart. Crim. Ev., sec. 60.
This applies as well to the State as an offensive matter as it does to the defendant as a defensive issue. Certainly, if appellant should be permitted to introduce evidence going to show that deceased had cursed her, accused her of infidelity and unchastity, and abused and mistreated her in various ways, then the State should be permitted, with equal justice, to introduce any legitimate evidence that tends to combat this issue made by defendant. Evidence going to establish the fact that he is a peaceable and quiet man, humane to his family, and a man whose reputation was that of one who did not curse or swear, is competent and proper, as tending to combat the issue raised by" appellant. Everett v. State (Texas Crim. App.),
24
S. W. Rep., 505.
Appellant in motion for new trial complains of the failure of the court to charge that certain witnesses tendered by defendant were accomplices, and that upon cross-examination they testified to original matter for the State, and for that reason a charge on accomplice testimoney should have been given. In appellant’s brief he insists that Robert, Emma, and Emmie Martin, the children of deceased, were accomplices, and that the evidence shows they concealed the crime, and to that extent protected their grandfather Hudson as yell as their mother, appellant, and by failing to make known the fact that they ■were perpetrators of the crime. These witnesses, being the children of appellant, could not be accessories after the fact, conceding the evidence shows they did conceal the fact that the crime had been committed, as this relationship to Hudson and appellant is such that the statute itself exempts them. Penal Code, arts. 86, 87; Adcock v. State, 41 Texas Crim. Rep., 288. Furthermore, the bare fact of their presence at the commission of the crime, and their failure to give alarm or notice of its commission, does not constitute them- accessories. In Shackey v. State, 41 Texas Crim. Rep., 255, the court said: “The mere fact that the witness knew that the offense had been committed and remained silent would not make her a principal, nor- will the further fact that the following day she concealed her knowledge of Fisher’s connection with it make her a principal.” - The aid or assistance or concealment must redound to the personal benefit of the principal. There is nothing in this record which shows that the witnesses above stated knew the crime was to be committed, or that they advised, aided, or encouraged its commission. The nearest approach to anything indicating this is the bare knowledge of ill feeling between appellant and the father of witnesses, the husband of appellant. This surely would not make them accessories in any sense, even if the statute above cited did not preclude this idea.
Appellant further insists that the charge of the court on principals is not correct, in that the undisputed evidence shows that appellant was not in the house or room where the murder was committed, but outside the yard, near the gate or barn. The barn was within thirty steps of the house, and the gate is still nearer. It' is not necessary, in order to constitute one a principal to a crime committed inside the house, that the party should be within the walls of the house at the time of its eommis
sion. The presence need not be strictly actual immediate presence, such a presence as would make an eye or ear witness, but may be a constructive presence. Grimsinger v. State, ante, p. 1; 5 Texas Ct. Rep., ■628; Pryor v. State, 40 Texas Crim. Rep., 643; 1 Russ. Crimes, sec. 49; McClain Crim. Ev., 199. The gate and bam were, as stated, in such close juxtaposition to the crime as to make appellant constructively present at its commission. This case, in all the phases raising the question of the nonpresence of the accused at the commission of the crime, is similar to that of Grimsinger v. State, supra, which is referred to for further discussion. It is not necessary that the evidence show appellant was, at the immediate time of the commission of the crime, doing some act in furtherance of the same. If she had previously either advised, instigated, encouraged, or agreed to the commission of the crime, and was present as above stated, this alone, under article 78, Penal Code, makes her a principal.
- Appellant insists that the evidence is not sufficient to support the conviction. We can not agree to this, but believe the evidence clearly demonstrates, to the exclusion of doubt, the participancy of appellant in the murder of her husband; that same was prompted from the desire to procure possession of his little farm and life insurance and other ■effects that his frugality had accumulated. She tried to bribe parties, offering $500, to kill her husband, and stated that she wished he was dead, and made divers and sundry threats against deceased; she turned against him, and made confession to her father on the day of the homicide of ill treatment, etc.; she changed her clothing, which showed traces of blood, after the crime, and showed agitation when the dress that she wore when the crime was committed was discovered; she was stoical and indifferent at the death of deceased, and showed callousness up to the very time of the funeral. These, with divers other circumstances too numerous to recount, exclude all reasonable doubt of her - guilt. The judgment is affirmed.
Affirmed.