Cates v. State, (No. 5981.)

• Decision Date: 26 January 1921
• Docket Number: (No. 5981.)
• Citation: 227 S.W. 953
• Parties: CATES v. STATE.
• Court: Texas Court of Criminal Appeals

227 S.W. 953

CATES v.STATE.

(No. 5981.)

Court of Criminal Appeals of Texas.

January 26, 1921.

Rehearing Denied March 2, 1921.

Appeal from District Court, Crosby County; W. R. Spencer, Judge.

Sam Cates was convicted of murder, and he appeals.Reversed and remanded.

W. E. Huffhines, of Pilot Point, and Lloyd A. Wicks, of Ralls, for appellant.

Gordon B. McGuire, Dist. Atty., of Lamesa, and Walace Hawkins and Alvin M. Owsley, Asst. Attys.Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Crosby county of the offense of murder, and his punishment fixed at confinement in the penitentiary for a period of 99 years.

In our view of the disposition of this case, an extended statement of the facts is not necessary.Appellant had been an inmate of the home of deceased for some years in the capacity of chauffeur, and it appears from the testimony of a number of witnesses that he and the wife of deceased were guilty of illicit relations.On the occasion of the homicide, deceased was twice shot by appellant, who used a shotgun, causing almost instant death.The theory of appellant upon the trial was that the shooting was in defense of the wife of deceased against an assault then being made upon her by her husband.

During the trial the state was permitted to introduce in evidence certain portions of a will made by the wife of deceased.It appears from the record that Mrs. Burton, the wife of the deceased, died not very long after her husband was killed by the appellant, and that after the homicide, and at a time when the appellant was in jail, she made a will in which she devised to the appellant a large portion of her property.Those parts of said will so bequeathing said property to him were introduced upon said trial over the objection of appellant, and this action of the trial court is here assailed as erroneous.We think the objection to same should have been sustained.

As stated above, appellant was in jail at the time the will was made, and no connection on his part with the making of said will appears anywhere.As far as he was concerned, it was the act and declaration of a third party out of his presence and hearing, occurring subsequent to the homicide.We will not speculate as to the effect of such evidence further than to say that it cast no legitimate light upon the homicide, and that its hurtful influence upon the jury must be manifest.The state believed it material and insisted on its introduction.Walker v. State63 Tex. Cr. R. 499, 140 S. W. 455.We apprehend the evidence was admitted upon the theory of conspiracy between the wife of deceased and appellant, but we find nothing in the record which indicates any acting together between said persons in the taking of the life of deceased, but if such theory be plausible, we have never held admissible the acts and declarations of coconspirators made subsequent to the...