White, P. J.
Chester Baker, J. W. Miller, and appellant James E. Paul were jointly indicted under articles 766-804, Penal Code, for conspiracy to rob one Sam Sing. Baker was tried and acquitted, and Paul upon his motion was granted a severance and placed upon his trial, which resulted in the conviction here appealed from.
On the trial defendant offered to prove that his co-defendant Chester Baker had been acquitted after a trial had on this same indictment, and offered to read in evidence the record in Baker’s case showing his trial and acquittal. To this the counsel for the State objected, and the court sustained the objection, and refused to permit the offered evidence to be introduced; and defendant saved his bill of exceptions to the ruling of the court in excluding the evidence. This is the main error relied on for reversal.
“A conspiracy is an agreement entered into between two or more persons to commit one or more of the following offenses, viz.: Murder, robbery, arson, burglary, rape, theft, or forgery.” Penal Code, arts. 776 and 780.
As to the effect of the acquittal of one of the parties Mr. Greenleaf states the rule thus: “If two only be charged with a conspiracy and one be acquitted, the other must also be acquitted though he be guilty of doing the act charged; for it will be no conspiracy, however otherwise it may be criminal. And if one of several defendants charged with this offense be acquitted, the record of his acquittal is admissible in evidence in favor of another of the defendants subsequently tried. ” 3 Greenl. Ev. § 97. And Mr. Wharton also states the rule to be that “where one of several defendants charged with conspiracy has been acquitted, the record of acquittal "is evidence for another defendant subsequently tried.” 2 Whart. Cr. Law (8th ed.), § 1391. Under these authorities we are of opinion that the proposed evidence was admissible, and that the court erred in its rejection.
In view of another trial it may not be improper further to remark that the acquittal of Baker would also render his acts and declarations in furtherance of the common design inadmissible as evidence against the other defendants; because, if he was not a co-conspirator, his acts and declarations could not be binding upon them.
Again: Baker having been acquitted, the court erred in charging the jury with reference to a supposed conspiracy between him and the other defendants; instead of which, the charge should have confined the investigation of the jury to the question of a conspiracy as existing alone be tween the appellant and his co-defendant Miller, without including the acquitted defendant.
For the errors indicated, the judgment must be reversed and the cause remanded for a new trial.
Reversed and remanded.