Douglas Arthur McCUIN, Appellant, v. The STATE of Texas, Appellee.
No. 48077.
Court of Criminal Appeals of Texas.
March 6, 1974.
505 S.W.2d 827
The indictment in the case at bar properly makes the customary allegations of prior convictions under the provisions of
The third ground of error is that “no probable cause having been shown for the search and seizure of the defendant‘s vehicle the Court committed error in admitting in evidenсe the fruits of said search including the contents of said automobile.”
Captain Lynch, a nineteen-year veteran of the Denton Police Department, received a radio communication concerning a theft and was told to be on the lookout for a vehicle of a certain description bearing a specified license plate number. He observed that vehicle being driven above the speed limit. He followed the automobile until it was driven into a service station. He drove in behind the automobile and as he was getting out of his automobile the one he had been following sped away on the Fort Worth highway. After a high sрeed chase which exceeded the applicable speed limits the officer stopped the automobile, which was driven by the appellant, and in which there were two female passengers. As thе automobile stopped the officer saw goods being thrown from it. After it was stopped he saw a man‘s suit in the back seat. This suit is the property alleged to have been the subject of shoplifting alleged in the primаry count of the indictment. The officer under the circumstances had the right to stop the automobile. The goods which were thrown from the automobile and the suit which was in open view were not recovered by virtue оf an unlawful search and seizure. See Medina v. State, 493 S.W.2d 151 (Tex.Cr.App. 1973); Boyett v. State, 487 S.W.2d 357 (Tex.Cr.App. 1972); Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App. 1972).
The judgment is affirmed.
Opinion approved by the Court.
Tim Curry, Dist. Atty., William W. Chambers, Charles E. Webb and Howard M. Fender, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State‘s Atty., and Buddy Stevens, Asst. State‘s Atty., Austin, for the State.
OPINION
QUENTIN KEITH, Commissioner.
The conviction is for murder with malice; punishment was assessed at 25 years’ confinеment. Appellant‘s brother, Willie Earl McCuin, was charged with the same offense, and the two were tried jointly. The companion case, also decided this day, may be found at 505 S.W.2d 831 (delivered March 6, 1974).
According to the State‘s evidence, thе deceased, Robert Lacey was in a public park in Fort Worth on a Sunday afternoon where he had been horseback riding. Appellant and his brother, Willie Earl, came to the park in separate cаrs; each jumped out and ran toward where Robert Lacey was in the park, appellant carrying a knife while his brother had a rifle in his hand. An argument ensued between deceased on the one side and appellant and his brother on the other, during which time the deceased grappled with Willie Earl McCuin for possession of the rifle. Willie Earl, regaining possession of the rifle, shot the deceased. Appellant then began stabbing deceased with his knife while deceased was upon the ground.
The medical examiner testified unequivocally that death was caused by gunshot wounds and that the knife slashings were merely superficial and did not cause оr hasten the death of Lacey.
Appellant testified that he stabbed the deceased after he had been shot by his
The court charged on the law of principals, the language being taken from 8 Texas Practice, Willson‘s Texas Criminal Forms Annotated (7th ed. 1966, W. Morrison and T. Blackwell) Sec. 3590, p. 588. However, the charge was simply an abstract statement оf a legal proposition and did not make any application of the law of principals to the facts of the case. Appellant made timely, specific, and proper objections to this оmission and tendered a requested charge on the subject. Both the objections and the request were overruled, and this action of the trial court forms the basis of ground one.
The trial court erred in overruling the objеction to the charge which pointed out the fatal defect in the charge on the law of principals. Under the State‘s theory of the case, there was evidence from which the jury could have found, under а proper charge, that appellant was guilty as a principal; but that is not the record which we review. The appellant has been found guilty of killing deceased by shooting him with a gun while the testimony shows without contradiction that deceased was shot by Willie Earl McCuin, not the appellant. In Oliver v. State, 160 Tex.Cr.R. 222, 268 S.W.2d 467, 470 (1954), a similar fact situation was presented, the Court saying:
“The court‘s charge contained an abstract definition on the law of principals, but in no manner applied the samе to the facts.
“The jury was authorized by the charge to convict appellant upon a finding that he committed the murder, but the evidence is not such as would sustain such a finding.
“The jury was not instructed to the effect that if Moody Puсkett voluntarily killed the deceased and appellant acted with him as a principal, in one or more of the ways stated in the definition of that term, he should be convicted.
“The trial court should have made аpplication of the law of principals to the facts, the jury, under the facts here, not being warranted in convicting him unless they found that knowing of Puckett‘s unlawful intent, he agreed to or aided or encouraged him in the commission of the offense.
“And in connection with such submission it was incumbent upon the court to charge the converse.”
Each of the remarks made by Judge Woodley in Oliver is applicable to the case at bar.
Judge Morrison, co-author of the interpretative comment on the law of principals which appears in 1 Vernon‘s Annotated Penal Code, p. XVIII (1952), said: “In instructing on principals, a mere abstract charge is not sufficient. The charge should apply the law to the facts.” (footnote omitted)
An examination оf the authorities reveals a line of cases wherein this Court has held that the giving of a charge on principals without an application of the law to the facts does not constitute reversible error. Durham v. Stаte, 112 Tex.Cr.R. 395, 16 S.W.2d 1092, 1093 (1929), is an example which has been followed many times. See, e. g., Hannon v. State, 475 S.W.2d 800, 802 (Tex.Cr.App.1972).
In Durham, the Court pointedly noted: “When the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on principals would be necessary, although the proof may also disclose that in doing the criminal act another took an equal part.” (16 S.W.2d at 1095) Since the evidence in Durham did not raise the issue, the Court‘s charge was held nоt to be reversible error.
We note that in Durham, and in its progeny, the conduct of the defendant then on trial was, in and of itself, sufficient to convict the accused оf the offense charged. On the other hand, in Oliver and its line of cases such fact situations did not exist. As appellant puts the distinction:
“In Oliver the defendant did not shoot. In Crisp the defendant did not stab. In Barnes the defendant did not ‘take’ thе property. In Lopez the defendant also did not shoot. The law of principals was absolutely essential to those cases.”
We are of the opinion that each line of cases (Oliver and Durham) has continuing vitality and each was correctly decided under the fact structurе of the particular case. However, there is need for clarification of the rule so as to eliminate the potential for confusion in the application of each line of cases. We аre of the opinion that such can be accomplished by following the tests set out immediately below.
Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals is required. The Durham rule governs in this situation.
On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State‘s case rests upon the law of principals and is dependent, at least in part, upon the conduct of another. In such a case, the law of principals must be submitted and made applicable to the facts of the case. Thus, the Oliver rule will govern this fact structure.
We do not deem it necessary to comment upon any of the other grounds оf error brought forward save number three wherein defendant objected to the Court‘s charge because of the failure to charge upon the law of self-defense against an attack from multiple assailаnts.
This identical point has been raised and discussed in the companion case of McCuin v. State, Tex.Cr.App., 505 S.W.2d 831 (this day decided), and we refer to such decision for the statement of the complaint as well as the ruling thereon.
For the errors herein noted, the judgment of the trial court is reversed and the cause is remanded.
Opinion approved by the Court.
DOUGLAS, Judge (concurring).
I concur in the result reached but do not agree that the tests or guidelines for charges in future cases should be included in the opinion. We cannot foresee all possible fact situations before they occur. Courts have enough trouble trying to have continuity with holdings, let alone trying to fit decisions with dictum or language not necessary to an opinion.