70 S.W. 208 | Tex. Crim. App. | 1902
Appellant was convicted of the theft of a hog, and his punishment assessed at confinement in the penitentiary for a term of four years.
The facts adduced on the trial are substantially as follows: Appellant, with his two codefendants, the Cashes, agreed to steal the hog of the prosecuting witness Cogburn; that appellant furnished one of the Cashes with a gun, and told him to go and shoot the hog, which was running in the Cogburn pasture; that Cash took the gun, went into the pasture, shot and killed the hog, but did nothing with reference to its asportation except to hide the hog in some brush; subsequent to the killing of the hog, and on the succeeding day, appellant and his codefendants, the Cashes, went to the place where the hog was killed, skinned the hog, concealed the hide and head, carried the meat to a gully near appellant's house, and concealed it; that appellant and his codefendants ate part of the flesh of the hog.
Appellant's main insistence is that the facts constitute him an accomplice, and not a principal, he not being present at the time the hog was shot. The court charged the law of principals to the jury. In Lott v. State, 20 Texas Crim. App., 230, it was held that the sale of an animal running upon the range to an innocent party was not a theft of the property, within the contemplation of our theft statute. But this case was overruled in Doss v. State, 21 Texas Crim. App., 505. And the case of Martin v. State,
Reverting to the facts, it appears that appellant gave Cash, one of his codefendants, a gun; that he went into the Cogburn pasture, and killed the hog. The moment that he killed the hog, within the contemplation of law, Cash's crime was complete, and he could have been prosecuted and convicted for the theft of the hog, and the act of appellant in giving him the gun makes and constitutes appellant an accomplice to the crime of theft committed by his codefendant. Carlisle v. State,
Because the court charged the jury the law of principals as applicable to the state of facts proved, the judgment is reversed and the cause remanded.
Reversed and remanded.