(216 S.W.) nesses took part, and that the sparks were flying onto the mill, and, the effort to save the ties seeming futile, they turned their attention to preventing the destruction of the mill; that the appellant appeared to be exhausted by his efforts; that the fire obstructed the road to the place they expected to hunt, and they spent the remainder of the night in the house with appellant and Barrett; that when the car occupied by the other party of hunters arrived the appellant went out of the house and talked a short time, and returned, remaining the balance of the night. [1, 2] The appellant, in a motion for a new trial, produced affidavits of two witnesses, farmers residing in the community, who declared that they passed the premises early in the night on which the fire occurred, driving their teams along the road, first passing the house which appellant occupied, and saw and recognized him there reading a newspaper; that on reaching the commissary they discovered three men, who, on the approach of the witnesses, disappeared, but one of them they recognized as Le Blanc. This evidence was newly discovered and it is affirmatively shown that it was considered by the court in passing upon the motion, which was not controverted, and upon which there was no evidence introduced by the state. We are aware of nothing in the record which would justify the conclusions that the statements of these witnesses were untrue. Admittedly the fire had made much progress before it was discovered by the witnesses for either the state or the appellant. The state, in opening its case, introduced appellant's statement that he first discovered the fire at about 11 o'clock; he having been asleep at the time it took fire. The state relies upon the inferences to be drawn from the facts that were developed to show that the appellant started the fire, and the facts testified to by the witnesses who claimed to have watched the premises after arriving from Houston, and drcumstances from which they drew the conclusion that appellant was engaged in augmenting the fire which was burning the lumber. There was much testimony tending to show that by reason of the dense undergrowth the recognition of the appellant or the observation of appellant by these witnesses, while they claimed to have been watching, was impossible. A well-known rule, often applied in this state, permits one accused of crime, where circumstantial evidence is relied upon to prove his guilt, to introduce evidence tending to show that another having motive to commit the offense was in such proximity to it that he might have been its author. Dubose v. State, 10 Tex. App. 230; Taylor v. State, 81 Tex. Cr. R. 359, 195 S. W. 1147. The state used the witness Le Blanc, and the court instructed the jury that he was an accomplice. The newly discovered evidence put him and unknown companions in proximity to the destroyed property under suspicious circumstances a short time before the fires were lit, and at a time when, according to this new evidence, the appellant was in his dwelling, out of sight of and some distance from the locality of Le Blanc and his companions. Recalling that Le Blanc admittedly upon some motive was one of the incendiaries, the new evidence, putting him and companions whose identity was not disclosed upon the trial in proximity to the crime, both in time and locality, was such, we think, as might have been regarded by the Jury as important in accounting for the fire in a manner consistent with the innocence of the appellant. Particularly is this true in view of the marked conflict in the evidence given by the witnesses for the state and the defendant, who, so far as the record shows, were not in any way interested in the result of the trial. [3] In closing the argument of the case, one of the attorneys for the state stated to the jury in substance that just before the fire "the lumber market was bad, and that they [the jury] knew of a great many big stacks of old lumber around in the vicinity at different places that could not be sold." The bill of exceptions reserved to this argument, and the refusal of the court at the time to admonish the jury, shows affirmatively that there was no evidence admitted or offered showing or tending to show that the lumber market was bad at the time stated, or at any time, nor that there were any piles of old lumber in the vicinity which could not be sold. The statement of the attorney for the state in his argument appears, therefore, to have been the only evidence before the Jury going to show that the appellant had aught to gain by setting fire to his lumber. The evidence connecting the appellant with the offense, as stated, is very conflicting, and the importance of showing a motive for the offense was extreme. That he desired to collect the insurance that covered the ties furnished the motive is by no means obvious, for the reason that it is difficult to point to any evidence showing that the appellant would have profited by collecting the insurance on the ties, instead of collecting their contract price. While he had no contract to sell the lumber, there was evidence introduced that it had a fixed price and that it was marketable. The state might have met this issue by the introduction of evidence before the jury upon the trial of the case, because, if untrue, it would have tended to support the state's theory that appellant would profit by obtaining the insurance money on the lum ber. No such evidence having been introduced by the state, the omission could not lawfully be supplied by the unsworn statement of the attorney for the state. The statement was calculated to have a potent effect on the jury. To what extent it is reflected in their verdict we are not able to determine. That it was an infringement of the rights of the appellant is clear. The judgment is reversed, and the cause remanded. (86 Tex. Cr. R. 291) CONE v. STATE. (No. 5500.) (Court of Criminal Appeals of Texas. Nov. 26, 1919.) 1. CRIMINAL LAW 372(5) EVIDENCE OF EXTRANEOUS CRIMES TO SHOW SYSTEM. In prosecution of defendant as an accomplice to the theft of an automobile, it was error to admit testimony that the principal committed the theft of perhaps as many as three additional autos at intervals covering several months, and that three of these reached defendant, on the theory of showing systematic thefts. 2. LARCENY 27-WHO IS AN ACCOMPLICE. To convict defendant as an accomplice to theft of automobile charged to have been stolen by P., it is necessary to prove that P. was a principal, and that defendant advised and encouraged him to commit the theft, and that defendant was to receive the stolen automobile and pay therefor. Appeal from District Court, Camp County; J. A. Ward, Judge. Gary Cone was convicted as an accomplice to the theft of an automobile, and appeals. Reversed and remanded. M. B. Briggs, of Gilmer, Bass & Engledow, of Pittsburg, and C. E. Florence, of Gilmer, for appellant. Alvin M. Owsley, Asst. Atty. Gen., for the State. DAVIDSON, P. J. Appellant was convicted as an accomplice to the theft of an automobile. The indictment charged that Joe Pullen committed the theft of an automobile from Ike Pitts, and that appellant prior to this theft advised and encouraged Pullen in committing the theft. Pullen testified that be entered into a conspiracy or agreement with appellant to steal automobiles, for which appellant was to pay him $100 a piece; that Pullen was to bring them to appellant; that appellant lived in Upshur county, and it seems that this contract or agreement between them was entered into in that county. Pullen testifies that he went to Mt. Pleasant in Titus county and stole an auto, which 3. CRIMINAL LAW 780(3), 792(1)-INSTRUC- proved to be the property of Pitts; that he TION ON CORROBORATION OF ACCOMPLICE. In prosecution of defendant as an accomplice to theft of automobile, held, that jury should have been instructed that the state must prove, first, that P. was a principal and committed the theft, and that he must be corroborated as to that issue, and, second, that defendant was an accomplice as charged, and that P.'s testimony was not sufficient to prove that fact, but must be corroborated. brought this auto to appellant and turned it over to him.. The auto belonged to Pitts and was stolen by somebody, and was subsequently recovered by Pitts in Tyler, Smith county. Pullen testified further that he committed the theft of perhaps as many as three additional autos at intervals covering several months, and that three of these reached appellant; it seems the last one did not, but from the view we take of the case it is im4. CRIMINAL LAW 59(5)—AGREEMENT TO material whether it did or did not reach him. COMMIT CRIME DOES NOT MAKE ONE AN AC- The mere agreement to commit a crime 59(5)-CONSPIRATOR DIS TINGUISHED FROM ACCOMPLICE. A positive agreement to commit a felony constitutes a conspiracy, whether the felony is afterwards executed or not; but, where the party is charged as an accomplice, there must be a crime in pursuance to the agreement, and the accomplice must advise, commend, or agree to furnish means or aid in order to connect him with it. The [1] Over the objection of appellant, the evidence with reference to the three other automobiles was introduced in evidence. pur-court signing the bill of exceptions states he permitted this on the theory that there was a general conspiracy between the parties by which Pullen was to commit theft of autos, as long as appellant receive them, and this conspiracy was pending that all thefts in accordance therewith were admissible in each case. We are of opinion that the court was in error. The matter has been before the court on various propositions and under numerous authorities. It has been held by this court that evidence of extraneous crimes may be admitted to develop the res gestæ, connect the defendant with the case on trial, or to show intent; and also it is asserted as a general proposition that such evidence may be introduced when it tends to show system. It will be observed that the authorities draw a broad distinction between the doctrine of system and systematic crime. 6. CRIMINAL LAW 424 (3)-ACTS AND CONDUCT OF OTHERS INADMISSIBLE AGAINST DE FENDANT. Acts and conduct of defendant's brother and P., the principal, in the absence of defendant and after stolen car had been delivered to defendant as claimed by P., were inadmissible unless defendant was in some way a party to the same or had knowledge or assented thereto. (216 8.W.) This has been the subject of a number of | cordance with the conspiracy he (appellant) decisions, and the question of system will not apply unless it is for some of the purposes stated. The court, speaking through Judge Henderson, discussed these matters at some length in Long's Case, 39 Tex. Cr. R. 537, 47 S. W. 363. See, also, Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501. That case shows that it was the theory of the state that Smith and Capers entered into a conspiracy to commit the crime of arson as to different houses. Capers testified against Smith, and on the trial the court permitted testimony with reference to the arson of other houses than that charged. This court used the following language: "These transactions were independent of the one for which this conviction was obtained. The court seemed to believe, from his qualification of the bill, that, if there was a conspiracy to burn houses, this would permit evidence of all the other cases of arson testified by Capers, on the theory of system. Where evidence of an extraneous kind is admitted, it must be to show intent to develop the res gestæ, identity of the defendant, or show system. That a party may be systematically a thief, or destroyer of houses by burning, or in the participancy or execution of a crime, does not necessarily come within the exceptions above mentioned. To prove system in order to identify a party, or to show intent, is one thing; but to prove systematic crime, or that an accused is a confirmed violator of the law, is a very different proposition. And extraneous crimes are not admissible, even under the exception to the rule, unless the testimony comes within one of the exceptions, and this to connect the defendant with the crime for which he is being tried. This evidence does not come within these exceptions. The fact that other houses may have been burned and appellant may have participated in them does not of itself connect the defendant with the arson charged in the indictment under this record. A party cannot be tried for various extraneous violations of the law in this way. He can only be tried for the offense for which he is being prosecuted, and not for those that are not charged against him in the particular indictment." That case cites quite a number of authorities. Therefore we hold the court was in error in admitting evidence of the extraneous thefts. was to give or pay Pullen $100 for the stolen car. It would be further necessary to corroborate Pullen in regard to the theft and the conspiracy as alleged, to constitute appellant an accomplice. Without discussing the facts, we are of opinion that the corroboration as to appellant being an accomplice is not sufficient. No witness testified to any fact, as we understand this record, that appellant was ever to pay Pullen $100. In fact, the testimony is not sufficient to corroborate Pullen, as we understand the record, as to appellant being an accomplice. But that question is incidentally mentioned so that upon another trial these matters may be proved if the state has the evidence. The attack on the charge we think was justified. [3-5] It is not sufficient to charge, in cases of this character, simply that appellant was an accomplice witness and as such to be corroborated. That was necessary, of course, both as to the theft and as to appellant being an accomplice as alleged. The court in directing the minds of the jury as to the law should have instructed them, first, that the state must prove that Pullen was a principal and committed the theft, and that he must be corroborated in his testimony as to that issue; second, that the state must prove that appellant was an accomplice as charged in the indictment, and in the manner charged, and that Pullen's testimony was not sufficient to prove this; that he must be corroborated as to that issue. The allegation of a party being an accomplice in crime as an offense is rather in the nature of a compound offense.. Before there can be an accomplice there must be a principal, and the principal must have committed the act. There could be no accomplice to a crime until that crime has been committed by the principal. The mere agreement to commit a crime, however strong the facts may be as to that question, would not constitute the party an accomplice unless the crime was subsequently committed in pursuance to the conspiracy or agreement. That the party may be a conspirator and subject to prosecution under the conspiracy is not discussed, because the statute with reference to conspiracy provides the conspiracy is a complete and separate offense, and may be an offense whether the parties ever carried it into execution or not. A positive agreement to commit a felony constitutes a conspiracy, whether the felony be afterwards executed or not; but that is not so where the party is charged as an accomplice. There must be a crime in pursuance to the agreement, and, the accomplice must advise, commend, or agree, or furnish means, or, aid as required by the statute, in order to connect him with it. Upon another trial the court will so instruct the jury. [2] The court charged the jury with reference to accomplice testimony. Exceptions were reserved to this as being incomplete, and a special charge was refused. The charge on accomplice testimony was rather of stereotyped form. In order to convict the defendant, it was necessary for the state to prove, first, that Pullen was the principal, and, second, that appellant advised and encouraged him to commit the theft, and that he (appellant) was to receive the stolen auto and pay Pullen $100. It was therefore necessary for the state to prove, among other things, that appellant was an accomplice as alleged, and in the manner alleged. It would be necessary, There are other matters involved which therefore, for the state to prove that in ac-are of interest; among others, the applica tion for a continuance. This may not arise upon another trial, and it is unnecessary to discuss it. [6] There is this general question which is noticed. The state introduced acts and conduct on the part of appellant's brother and Pullen in the absence of the defendant, and after the car had been delivered to appellant, as claimed by Pullen. We are of opinion the objections to this testimony were well taken. In order to connect the defendant with such acts and conduct, he must be in some way connected with same. These subsequent acts and statements of others would not be admissible, unless appellant was in some way a party to same, or had knowledge of or assented thereto. This is mentioned in a general way so that it may not occur upon another trial. In a prosecution for murder, defendant seeking to reduce the offense to manslaughter on the theory that he was attacked by decedent and another, one or both, general charge on manslaughter, construed as a whole, held to present the issue in such manner as not to injure defendant by limiting reduction of the offense to manslaughter only if defendant was attacked by both decedent and the other, not by one alone; the parts complained of not fairly presenting their relation to the general charge. 6. CRIMINAL LAW 1059(2)—EXCEPTION IN SUFFICIENT BECAUSE TOO GENERAL. The ground of exception that the court did not allow defendant sufficient time to review a charge after it was written and before being For the reasons indicated, the judgment is read to the jury, reciting that the charge was reversed, and the cause remanded. handed to defendant's counsel at 11 o'clock in the evening, and that they were given until 8:45 the next morning to examine it, held insufficient, as too general. 7. CRIMINAL LAW 1092(11), 1115(2)—ExCEPTION TO REFUSAL TO QUASH VENIRE INSUFFICIENT AS QUALIFIED. In a prosecution for murder, denial of de (Court of Criminal Appeals of Texas. Nov. 26, fendant's motion to quash the venire on vari 1919.) 1. HOMICIDE 142(1)-ISSUES OF MURDER, MANSLAUGhter, and SELF-DEFENSE. ous grounds held not to present error or require revision, in view of the bill of exceptions merely repeating some of the grounds of the motion but containing no facts and not showing what evidence was introduced in regard to the matter, and in qualification thereto by the In a prosecution for murder, contentions of the state and defendant held to present the issues of murder, manslaughter, and self-defense. 2. HOMICIDE 309(1) INSTRUCTION ON 8. CRIMINAL LAW 597(1)-DENIAL OF CON MANSLAUGHTER. In prosecution for murder, wherein defendant's testimony presented the issues of manslaughter and self-defense, in that the person he killed and another, acting together, attacked him, excerpt from a charge on manslaughter that the offense was of such grade if defendant killed when assaulted, believing that both decedent and the other attacking person were acting together, etc., held proper. 3. HOMICIDE 309(1) INSTRUCTION MANSLAUGHTER. ON In a prosecution for murder, wherein defendant testified that the killing was either manslaughter or in self-defense because he was at tacked both by the person killed and another, an excerpt from a charge on manslaughter, that the killing was of such grade, if decedent and the other had combined, and the defendant believed they had, to do defendant some injury, and the conspirator with decedent had given the latter a knife to use against defendant, held not erroneous, as unduly limiting reduction of the offense to manslaughter only by an attack on defendant from both decedent and the other. 4. CRIMINAL LAW ——822(17)—WHOLE CHARGE TO DETERMINE ERROR IN PART. A whole charge, as one on manslaughter in a prosecution for murder, must be looked to court. TINUANCE FOR ABSENCE OF WITNESSES. In a prosecution for murder, denial of continuance for the absence of the witness stabbed by defendant at the time of the killing held not error, the facts expected to be proved by such witness on the face of the record not probably being his testimony. 9. CRIMINAL LAW 598(2) NO CONTINU ANCE FOR ABSENCE OF WITNESSES UNLESS DILIGENCE IS USED. ac Continuance was properly denied on count of the absence of witnesses to procure whose attendance or depositions defendant did not exercise sufficient diligence. 10. CRIMINAL LAW 938(3)-NEW TRIAL DENIED FOR EVIDENCE NOT NEWLY DISCOVERED. In a prosecution for murder of defendant's mistress, new trial was properly refused when asked on account of newly discovered evidence of the city marshal that decedent was a mean and vicious woman, who had previously attacked defendant two or three times, as such evidence could not be newly discovered so far as defendant was concerned. Appeal from District Court, Angelina County; L. D. Guinn, Judge. Henry Johnson was convicted of murder, Affirmed. and he appeals. E. A. Berry, Asst. Atty. Gen., for the State. (216 S.W.) of them, provided the defendant believed they both were acting together and causing pain or time of the killing, or so near the time that bloodshed, provided such assault occurs at the the party receiving such assault and battery would not have time to be capable of cool reflection." DAVIDSON, P. J. Appellant was convict- [ "An assault and battery by the deceased, ed of murder, his punishment being assessed Tennessee Kitchens; and James Riley, or either at 20 years' confinement in the penitentiary. The evidence is to the effect that appellant and deceased, a woman, had been living for several years in adultery, and had had a number of serious troubles; that she had on more than one occasion used a knife upon him, and once had struck him on the leg with an axe. She seems to have been, from the testimony, a woman of unusual high temper and of decided physical courage. We deem it unnecessary to go into a detailed statement of the troubles occurring between appellant and deceased. This is an excerpt from the charge and made the subject of exception. The exception, specifically pointed out, is to the language as follows: "Provided the defendant believed they both were acting together and causing pain or bloodshed." His proposition Shortly prior to the homicide the deceased is that, if either of them were acting alone had taken up with another negro by the and causing pain or bloodshed, defendant's name of James Riley. This was rather dis- right of self-defense would be just as compleasing to appellant. On the evening pre-plete on the ground of manslaughter as if he ceding the fight at night appellant claims he gave his mistress some money, or bought her a pair of shoes to attend some character of church gathering. Without his knowledge, as claimed by him, she went to a dance, in the country two or three miles, with James Riley. Appellant says he was not aware of that fact, and thought she was at the church social. He went also to the dance. Upon reaching there he found the deceased and Riley present. Shortly afterward a difficulty occurred, in which appellant stabbed Riley and killed deceased. believed they both were acting together. Appellant's whole theory of the case is based upon the idea that the two, Riley and deceased, were attacking and fighting him in the dance room near the piano. The issues are sharply drawn. The state's theory did not present the issue of manslaughter from any angle of view as we understand this record. So it may be stated that any question of manslaughter suggested was from the testimony introduced by the defendant, to wit, that they were both acting together, in their attack on him. The court, however, in quotation above criticized, authorized manslaughter if either was so attacking appellant. lows: "That the deceased and James Riley had combined, if they had, or if the defendant believed they had, to do the defendant some bodily harm, or kill him, and that Riley had given the deceased a knife to cut the defendant with." The reason given is that [1] The state's theory of the immediate transaction was that Riley was sitting or [3-5] There is also an exception to another standing near a piano in the room, which portion of the court's charge on manslaughwas being played for the benefit of the danc- ter. That phase of the charge reads as folers. Appellant approached Riley and engaged him in conversation; brought on a difficulty with and stabbed him; that deceased ran out of the door, followed by appellant. As appellant went out upon the gallery, or just off the gallery, he encountered deceased, and immediately attacked and killed her. Appellant's theory was that the deceased had a knife or went to where Riley was, and Riley gave her a knife, which he observed, and he went over and asked Riley why he gave de ceased that knife; that he knew that she intended to kill him with it; that Riley called him a liar and struck him, and the fight be gan. His further contention is that while he and Riley were engaged in this trouble deceased ran up behind him, and was striking him in the back, as he thought, with a knife, and that the fight continued until they passed out of the door and on to the gallery, and perhaps the ground, and that he killed deceased under those circumstances. This presents the issues of murder, manslaughter, and self-defense. [2] Some of the language of the charge on manslaughter is made the subject of criticism in appellant's exceptions. Among other things in the charge on manslaughter the court gave this: 216 S.W.-13 "Said second section would be just as complete in favor of defendant without the necessity of Tennessee Kitchens and James Riley acting together and without defendant having to believe they were acting together, and such defense was complete without the necessity of defendant having to believe that James Riley had given Tennessee Kitchens a knife, if defendant believed that she had a knife, whether it was given to Tennessee Kitchens by James Riley or not." The same may be said of this as of the other, and possibly both, that they were short excerpts from the charge on manslaughter, based upon the idea that these excerpts were erroneous. As before stated, the whole theory of the defense was manslaughter and self-defense from the standpoint of an attack on him by both. If they in fact attacked appellant, or appellant believed that both of them were attacking him, he had the same right to defend from either standpoint; but, |