Bowen v. State
Decision Date | 12 October 1904 |
Parties | BOWEN v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, McLennan County; Sam R. Scott, Judge.
J. B. Bowen was convicted of murder, and appeals. Reversed.
Baker & Thomas and Taylor & Gallagher, for appellant. O. H. Cross, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of five years. The theory of the state was that this homicide originated on account of trouble between the Citizens' Railway Company, in the city of Waco, its officers and employés, and the striking employés, who had formerly been employed by said railway in the conduct of its business. The evidence on the part of the state tended to show that on account of some disagreement between said railway and its employés a strike occurred by said employés, who were union men, on the 27th of September, 1903; that after said strike the railway company undertook to employ others, who were nonunion men, to operate its railway; and that the effort of the striking employés was to prevent said railway from running its cars. This strike is shown to have continued from September 27th up to the time of the homicide, which was committed on the night of October 21st; that after the strike began, and up to about October 13th, no effort was made by the company to run or operate its cars, but on that date they undertook to resume service. There is testimony tending to show that they were interfered with in various ways by the strikers and their sympathizers. Trolley wires were cut, and those employed to run the cars were denounced as "scabs," and the cars were otherwise obstructed. The state's testimony further tended to prove that appellant was a member of the Confederation of Labor, and sympathized with the striking motormen, and joined a conspiracy to aid them in carrying out their purpose, to wit, to prevent the company from operating said cars by nonunion men. The state further offered proof that on the night of the homicide, which occurred near the corner of Sixth and Austin streets, appellant was present, and participated with Tennyson, Ripley, and others in firing toward the car in which deceased (Hays) was acting as a motorman. Defendant contended, and offered proof to the effect, that he was not an employé of said street railway company, and was not one of the striking motormen; that he did not conspire with Tennyson, Ripley, and others to prevent the running of said cars, or to do violence to persons employed to operate them, though he was present during a part of the time when the firing occurred, where Hays, the nonunion motorman, was killed, but did not by word or act participate therein. This is a sufficient statement of the case to discuss the errors assigned.
It may be stated that a great number of the assignments of error relate to the admission of testimony with reference to the conduct of Tennyson, Ripley, and others during the strike, which was introduced by the state for the purpose of showing a conspiracy to defeat the running of the electric street cars, and indicating the animus of those engaged in such conspiracy. The court received this evidence, and afterwards, by its charge, withdrew it from the consideration of the jury. It is contended by appellant that this evidence was wrongly admitted on the ground that no conspiracy was shown to exist between appellant and others engaged in said acts, and that he was not present at the time, and did not approve or participate in the same, and that, the evidence against him being inadmissible, it was of a character to prejudice him before the jury, and it was beyond the power of the court to withdraw its effect. On the other hand, the state contends that this testimony was admissible because the testimony tends to show that appellant was a co-conspirator with Tennyson, Ripley, and others to prevent the running of said cars, and that said conspiracy contemplated violence, the reasonable and probable consequences of which might result in death; and that the acts and declarations adduced in evidence were made pending such conspiracy, and were in furtherance thereof. In considering the questions presented, it may be well to state in advance the rules of law governing the admission of this character of testimony. The old rule that a conspiracy must be established before evidence of co-conspirators, made in the absence of a defendant, could be introduced against him, is not now in vogue; but such evidence may be introduced in the first instance, the prosecution undertaking to show a conspiracy. Of course, if there is no testimony tending to show such conspiracy against defendant, the court will exclude all such evidence of conduct and declarations of other alleged co-conspirators. However, if there is testimony tending to show a conspiracy in which defendant participated, but this is controverted by the defendant, the issue of conspiracy vel non will be submitted as a matter of fact to the jury, they being instructed, if they believe a conspiracy is established in which appellant participated, they can consider the acts and declarations of other conspirators in furtherance thereof, although made in the absence of appellant. On the other hand, if they do not believe a conspiracy to have been established as against appellant, they cannot consider such other acts and declarations of alleged co-conspirators. Cox v. State, 8 Tex. App. 254, 34 Am. Rep. 746; Chapman v. State (Tex. Cr. App.) 76 S. W. 477; Wallace v. State (Tex. Cr. App.) 81 S. W. 966. In Cox v. State, supra, this language is used: —citing a number of authorities. In Harris v. State, 31 Tex. Cr. R. 411, 20 S. W. 916, this doctrine is further enunciated, and it is there held that, where persons are shown to have acted together as principals, the motive or intent of a co-principal can be used against defendant as evidence of the motive and intent which may have actuated him in participating in the crime. However, there may be cases of conspiracy not reached or covered by the rules of evidence relating to principals. In all such cases we understand the rule of law regulating the admission of acts and declarations of co-conspirators still prevails. Under the law of conspiracy and the introduction of evidence thereunder, we understand a conspiracy must be established during the progress of the trial, and the proof must tend to show that defendant participated therein, and that the crime charged against him was within the scope of the conspiracy. As stated by Mr. Wharton (Cr. Law, § 220): "All those who...
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