81 S.W. 971 | Tex. Crim. App. | 1904
Appellant was convicted of forgery, and his punishment assessed at confinement in the penitentiary for a term of two years.
Bill of exceptions number 3 shows that while G.H. King, prosecuting witness, was on the stand, defendant, on cross-examination, offered to prove that immediately after he learned that the check mentioned in the indictment had been cashed by defendant at the bank of G.N. Dilworth, that witness and Dilworth met C.P. Chenault, father of appellant, and asked him to go with them to Dilworth's bank; that at the bank, on the evening the check was cashed, they told C.P. Chenault they (meaning witness and Dilworth) only wanted the money received by defendant on the check back; that they did not wish to harm defendant or his father; that if C.P. Chenault would bring back the money so received by defendant there would be no prosecution of defendant, but that witness and Dilworth would keep the matter secret, and that nothing would be said about it; that this agreement was made and entered into then and there between witnesses Dilworth and Chenault; and further acting upon said agreement, said Chenault did return to Dilworth the sum of $175 on the next morning. To all of this testimony the State *354 objected, and the court sustained the objections. The bill is approved with the statement that at this time said G.N. Dilworth had not testified.
Bill of exceptions number 4 complains that while prosecuting witness G.H. King and G.N. Dilworth were on the stand, and had testified in behalf of the State, appellant attempted to show by said witnesses that on the afternoon of October 4, 1903, after defendant had cashed the check at Dilworth's bank, said witnesses hunted up appellant's father and induced him to go to Dilworth's bank in the town of Gonzales, and there had a conversation with said Chenault, in which witnesses informed him of the execution and cashing of the check defendant is charged to have forged; and offered and agreed with said Chenault, if he (Chenault) would see defendant and return to Dilworth the money he had received on the check, to wit, $175, these witnesses would conceal the transaction, say nothing about it, and in that event would never be prosecuted, but the matter would blow over without prosecution against defendant. Defendant announced to the court that if permitted to inquire fully into the transaction he expected to prove by said witnesses that for a consideration they had entered into an agreement to conceal the alleged offense of defendant and prevent his trial and prosecution; and from their own testimony expected to show said witnesses were accessories after the fact to the crime under investigation. Whereupon the district attorney objected, and the court refused to permit said witnesses to testify; and only permitted appellant to ask specific leading questions to said witnesses for the purpose, as announced by the court, of impeaching said witnesses; said questions to be confined to whether or not certain statements had been made by said witnesses to said Chenault. This bill is approved with the following explanation: "That the fact of the meeting at Dilworth's bank was permitted to be shown, and the specific questions set out in the bill were permitted to be asked and answered; but the court held that it was not permissible to ask the witnesses to state what the conversation was generally."
Article 86 Penal Code, provides: "An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial, or the executions of his sentence." The proffered evidence, as disclosed by the two bills above, is insisted by appellant as being pertinent evidence in this case, upon the theory that the same would prove that the witnesses were accessories to the forger. We hold that said testimony is not admissible for this purpose. No one in this State can be an accessory after the fact, such as disqualifies him as a witness, unless he comes within the letter and spirit of the article above quoted; that is, he must give some aid and assistance to the principal before he can be guilty. In other words, he must conceal the offender or give him some other aid in order that he may evade an arrest or trial. The aid here contemplated is such as furnishing him with a horse to flee upon; or giving him a gun with the view of resisting arrest for the offense, or some other overt *355 active assistance. The evidence going to disqualify a witness must be of sufficient force to convict him of accessory to the crime before such witness would be an accessory. In Shackey v. State, 41 Tex.Crim. Rep., quoting from Mr. Bishop, we said: "That the test of an accessory after the fact is that he renders his principal some personal help to elude punishment — the kind of help being unimportant. Keeping a witness by persuasion or intimidation from appearing against a felon on his trial does not render one the felon's accessory, though it is punishable as a misdemeanor." And further, "That we learn from the elucidations of the first volume (of the same author) that an accessory after the fact in felony is one who in any way aids the principal offender, whom he knows to be guilty of the felony to elude punishment." "One is not an accessory who merely neglects to make known to the officers that a felony has been committed, or who forbears to arrest the felon or agrees not to prosecute him. Keeping a witness by persuasion or intimidation from appearing against a felon on his trial does not render one the felon's accessory. 1 Bishop Crim. Law, sec. 694. Nor does the fact that one agrees for money not to give evidence against a felon, or knows of the felony and does not disclose it, make the party an accessory after the fact. There must be some independent criminality to make one an accessory. By independent criminality as here stated, we understand is meant such aid as suggested above; such as furnishing a horse, a weapon, or disguise to enable the party to escape after the commission of the crime. But the doing of the things above stated do not make one an accessory." Miller v. State, 7 Texas Ct. Rep., 324. Appellant's contention that the court erred in not admitting this testimony seems to be predicated on the idea that if said witnesses made the agreements with appellant's father, then said witnesses would be thereby compounding a felony, and having compounded a felony would make them accessories to the forgery here on trial. This proposition was laid down by this court in Gatlin v. State, 49 S.W. Rep., 87; 40 Tex.Crim. Rep.. But we take it that said decision is at variance with the above cited cases, and is not sound in principle. The fact that one compounds a felony does not make such party an accessory to the felony compounded. It follows, therefore, that the court did not err in excluding this testimony.
Bill of exceptions number 6 shows that defendant offered to prove by C.P. Chenault, father of defendant, that immediately after he was informed defendant had cashed the check mentioned in the indictment, at Dilworth's bank, he sought defendant, and being the first time he was called on to account for his possession of the money received on said check, informed defendant that G.H. King had said that defendant had no right to sign his name to the check, and had no right to get money on the same; that defendant then and there informed his father that he had sold King his corn, and that King had told him to begin hauling the corn on the following Monday morning, and draw on him (King) for the money through G.N. Dilworth's bank; that defendant thought he *356 was authorized to draw the money on the corn he had sold to King. The State objected to this testimony on the ground that the same was inadmissible, self-serving, hearsay, and not a part of the res gestae. The bill is approved with the qualification: "That the conversation referred to occurred between two and three hours after the check was cashed, and at defendant's home, about seven miles from Gonzales." Appellant insists that this testimony is admissible under article 791, Code of Criminal Procedure: "When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other." However, we do not think this testimony comes within said rule. The declaration of appellant upon being informed, as stated above, by his father, is purely hearsay and self-serving. He can not be heard to manufacture a defense of this character. We accordingly hold that the court did not err in excluding the conversation.
There are various other bills of exception in the record presenting practically the same questions discussed, but we do not deem it necessary to review them.
Bill of exceptions number 12 complains that the court excluded the following testimony, at the instance of the State: While G.H. King was on the stand, defendant asked him the following question: "Is it true that, in the fall of 1902, on the streets of Gonzales, you voluntarily stated to Ed Cavitt, while Whit Chenault was away, and before he had returned, that you cared nothing about the forgery case (meaning the case at bar), that it didn't amount to anything, that if Whit would return and show up in the Mexican murder case, there was not a man in the county that would do more for him in the forgery case; that you would go his bond, and help to hire a lawyer for him, if necessary?" This testimony was merely the opinion of the witness and could not be introduced for defendant. Certainly if the witness had expressed the converse opinion, that is, an opinion indicating the guilt of appellant to a third party, the State could not have proved this; and it necessarily follows that the converse is true. Where he makes a declaration indicating a want of belief in the guilt of defendant, this could not be proved.
Appellant complains of the eighth paragraph of the court's charge, which is as follows: "If you believe from the evidence that defendant and said King had, in substance, the conversation above set out, and that defendant made the check in question for the purpose of paying himself for the corn he had agreed to sell King (if you find he did so agree) then you are to consider in this connection whether, in making the check, defendant did so with intent to injure and defraud; and if you fail to find from the evidence, beyond a reasonable doubt, that defendant made the check with intent to injure and defraud, you will acquit him." Appellant excepts to said charge on the ground that the same is upon the weight of the evidence, is contradictory to and in modification of the first paragraph of said charge; that the same tended to confuse the minds of the jury and lead them to believe that even *357 though the conversation had occurred between King and defendant, as narrated by defendant, defendant might be convicted under the circumstances. We do not think the charge subject to the criticisms urged by appellant, or at least it was not calculated to injure the rights of appellant.
There appearing no error in the record, the judgment is affirmed.
Affirmed.
[Motion for rehearing overruled without written opinion. — Reporter.]