¶1Among the many points raised in this record, we do not think any are well taken except two. That the *365better practice would be, to require the State to first prove the conspiracy before admitting in evidence the acts, doings, and declarations of a co-conspirator, is conceded; but if this is shown at any stage of the trial, there could be no injury to defendant.- It frequently happens that the promise to lay the predicate is not fulfilled, and the judge is forced to withdraw the evidence, which can never be successfully done ; hence the danger to the defendant. But in this case we think the proof was made ; and whether before or after the introduction of the acts of the co-conspirator is immaterial, as no injury could have resulted to defendant.
¶2There are two matters complained of by defendant in which we think the court erred: First, the admission in evidence of the acts, doings, and declarations of the co-conspirator after the consummation of the conspiracy; and, second, the introduction of-the deposition of the witness Sparks, taken before the justice of the peace, it not being-certified to by the justice.
¶3The defendant saved a bill of exceptions to the ruling of the court in admitting the acts and declarations of the co-conspirator done and said after the .commission of the offence. To the bill the judge appends the following statement: “The declarations and acts of the co-conspirator while in possession of the stolen property would be admissible against each," and the testimony of the witness Howard was admitted on this ground.”
¶4It is well settled by the authorities that when the common enterprise is at an end, no conspirator is permitted, by any subsequent act or declaration of his, to affect others. We have loooked in vain for the exception mentioned by the learned judge below. In support of the above rule we quote Wharton. He, on this subject, lays down the rule as follows: “ When, however, the common enterprise is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted by any subsequent act or declaration of his own to affect others. His confession, *366therefore, subsequently made, even though by plea of guilty, is not admissible in evidence, as such, against any but himself. Under no circumstances can the most solemn admissions made by him on tidal be evidence against his accomplice.” Whart. Cr. Law, sect. 703; Phillips v. The State, 6 Texas Ct. App. 383 ; The State v. Dean, 13 Ired. 63 ; The State v. Theobeau, 30 Vt. 100 ; Thompson v. The Commonwealth, 1 Metc. (Ky.) 13; Patten v. The State, 6 Ohio, 467 ; Draper v. The State, 22 Texas, 400.
¶5We therefore conclude that the court erred in admitting this evidence. The State introduced in evidence, over the objection of the defendant, the deposition (taken before-the justice of the peace) of the witness Sparks. It was not certified to by the justice. Its genuineness was proved by the justice and other witnesses, but there was no certificate thereto. We think the proper predicate had been laid for its introduction, it having been shown in evidence that the witness was out of this State permanently; and if the certificate had been attached, the deposition itself would have been admissible. Not having this, no other proof could make it admissible. The State could, however, prove what the witness Sparks swore before the justice, independent of the deposition; but this would have let the defendant in with proof also upon the same point. See art. 774, Code Cr. Proc. See also Guy v. The State, ante, p. 161; Dunham v. The State, ante, p. 330.
¶6For the above errors, the judgment is reversed and the cause remanded.
¶7Reversed and remanded.