McCuin v. StateMcCuin v. State
- Reporters:
- ,
- Before:
- Keith
Lead Opinion
OPINION
QUENTIN KEITH, Commissioner.The conviction is for murder with malice; punishment was assessed at 25 years’ confinement. Appellant’s brother, Willie Earl McCuin, was charged with the same offense, and the twо 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, the deceased, Robert Laсey 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 seрarate cars; 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 argumеnt 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 deceаsed 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 or 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 languagе 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 statemеnt of a legal proposition and did not make any application of the law of principals to the facts of the case. Appellant made timеly, specific, and proper objections to this omission and tendered a requested charge on the subject. Both the objections and the request were оverruled, and this action of the trial court forms the basis of ground one.
The trial court erred in overruling the objection to the charge which pointed out the fatаl 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 a рroper 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 same to the fаcts.
“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 nоt instructed to the effect that if Moody Puckett 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 application of the law of principals to the facts, the jury, undеr 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 оffense.
“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 applicаble to the case at bar.
Judge Morrison, co-author of the interpretative comment on the law of principals which appears in 1 Vernon’s Annotatеd 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 of the authorities reveals a line of cases wherein this Court has held that the giving of a charge on principals without an application оf the law to the facts does not constitute reversible error. Durham v. State, 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 Cоurt pointedly noted: “When the evidence shows that the accused on trial was a principal actor in the commission of the offense, no charge on рrincipals 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 not 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 сonvict the accused of 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 thе defendant did not shoot. In Crisp the defendant did not stab. In Barnes the defendant did not ‘take’ the 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 wаs correctly decided under the fact structure of the particular case. However, there is need for clarification of the rule so as to eliminatе the potential for confusion in the application of each line of cases. We are of the opinion that such can be accomplishеd by following the tests set out immediately below.
Where the evidence introduced upon the trial of the cause shows the active participation in the offеnse 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 evidencе 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 of error brought forward save number three wherein defendant objected to thе Court’s charge because of the failure to charge upon the law of self-defense against an attack from multiple assailants.
This identical point has bеen 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.
Notes
. Supporting the rule enunciated in Oliver are: Crisp v. State, 125 Tex.Cr.R. 603, 69 S.W.2d 772 (1934) ; Barnes v. State, 145 Tex.Cr.R. 131, 166 S.W.2d 708 (1942).
. Supporting the rule enunciated in Durham are: Lowe v. State, 377 S.W.2d 193 (Tex. Cr.App.1964) ; Hannon v. State, supra, 475 S.W.2d 800 (Tex.Cr.App.1972) ; Minor v. State, 476 S.W.2d 694 (Tex.Cr.App.1972). See also, Lopez v. State, 170 Tex.Cr.R. 208, 339 S.W.2d 906 (1960).
Concurrence Opinion
(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.