Arnold v. State
9 Tex. Ct. App. 435
Tex. App.
1880
Check Treatment
Hurt, J.

The appellant was convicted of murder of the first degree, and his punishment assessed at confinement in the penitentiary for life, he being charged as an accomplice to the murder of one Littlefield by Allen, William, and Arch Arnold.

An accomplice, under our Code, is the same as an accessary before the fact by the common law, with very much the same criminal procedure. In order to convict the accomplice, the State must prove the guilt of the principals, and that the accomplice advised, commanded, or encouraged the principals to commit the offence. There are two separate and distinct propositions demanding full proof of the State. The principals not having been tried and convicted, so that the record of their conviction could be introduced to establish their guilt, the State was required to prove their guilt in the same manner and to the same certainty as if they themselves had been upon trial; for their guilt must be shown before the accomplice can be legally convicted. It is not necessary that the principal should first be convicted, nor that he be put on trial with the accomplice ; but to convict the accomplice the guilt of the principal must be shown. It being, then, necessary for the State to show the guilt of the principals, all legal evidence, of whatever character, is admissible. Therefore motives, threats, and confessions of the principals, and, in fact, evidence from every legal source, is competent. From this we conclude that the defendant’s bill of exceptions No. 3 was not well taken ; but we are of the opinion that it was incumbent on the court to have charged *439the jury to the effect that this evidence was for the purpose of proving the guilt of the principals, and for no other purpose, there being no evidence in this record tending to show a conspiracy. Further: the conspiracy, being itself the predicate for the introduction of the acts, doings, and declarations of a conspirator, cannot be shown by the acts, declarations, and conduct of a supposed co-conspirator, but must be proved aliunde. The conspiracy being shown by ordinary legal testimony, then, and not till then, can the declarations and conduct of a co-conspirator be admitted. Again : as the defendant had the right to contest the guilt of the principals, the court below evidently committed an error in refusing to permit the defendant to question the jurors touching their opinion of the guilt or innocence of the principals. Nor does it matter in the least whether the defendant exhausted his peremptory challenges or not. He being so completely in the dark, it would have been a matter of choice if the objectionable jurors had been challenged. However, the record informs us that defendant did exhaust his challenges, and there remained a juror "who had formed an opinion as to the guilt of the principals. The judge appends to the bill' “that the juror answered that he had formed no opinion in regard to the guilt or innocence of defendant.” The court below evidently proceeded upon the idea that an opinion that the principals were guilty would not disqualify the jurors. In this there was error.

The State proved flight of the defendant and two of the principals, and seemed to give prominence to this fact by proving it by nearly all the witnesses. To explain this, defendant proposed to prove by his wife that “ on the day of, and before the flight, a man named Wright came to their house and told her and her husband that if he (defendant) and his boys wanted to preserve their lives until morning they had better leave : that a mob was forming to kill them ; that, after such information from said Wright, she (witness) had begged her husband to take the boys, Bill and Arch, *440and go away with them, for fear they would be killed by a mob.” To all of which evidence the district attorney objected as immaterial, and because the proper person to prove the statement of Wright was Wright himself; which was sustained by the court, and the ruling excepted to by the defendant and reserved by bill.

Under every principle of law and justice, this evidence was admissible ; nor was there anything in the objection of the district attorney “that the proof must be made by Wright himself.” Defendant had a right to prove it by any competent witness—his wife or any other person. Indeed, if he had, at the time of leaving, stated it himself, it would have been admissible.

The case of Simco v. The State, ante, p. 338, decided at this term of the court, settles the plea of former acquittal. The other errors complained of, not being likely to arise on another trial, will not be considered. For the errors mentioned above, the judgment of the court below is reversed and the cause remanded.

Reversed and remanded.