26 S.W. 505 | Tex. Crim. App. | 1894
Appellant was convicted of theft of cattle, and his punishment assessed at two years in the penitentiary.
The evidence shows, that appellant attended a party at Gussettville, in Live Oak County, on February 6, 1893, and there met J.J. Gallagher *357 and Charles Gallagher, and made an agreement with them that they should steal a carload of cattle out of Boyd's pasture and drive them to Beeville, and appellant would at once ship them by the Southern Pacific. Next day Charles Gallagher went with Rix to Beeville to see about cars. Some eighteen days afterwards the brothers, having perfected arrangements, wrote to Rix that they would meet him with the cattle, and on the 26th drove some thirty head, including the cattle alleged to be stolen, to Burk's windmill; but not meeting Rix, they drove on towards Beeville, and, reaching Koehler Hildenfeld's pasture, seven miles from Beeville, they placed the cattle in the pasture, and J.J. Gallagher rode on to Beeville and found that Rix was not in town. The Gallaghers then abandoned the cattle and rode back home. The evidence shows that Rix, who lived in Beeville, left there on the 16th of February, and did not return till the 2nd day of March, when he came with his family. The evidence as to the contract between Rix and the Gallaghers is entirely derived from the testimony of J.J. Gallagher, who testified as to the whole matter. The corroboration lies in the proof that Rix and the Gallaghers were seen in earnest conversation at the party. That next day Rix and one of the Gallaghers rode around in Boyd's pasture and looked at the cattle, and Rix offered to purchase some of the cattle from the owner, offering a lower price than he would accept; that Rix and Charles Gallagher were next seen riding to Beeville together; that on the night the cattle were driven, witness Terrell met the two Gallaghers in charge of the cattle, who told him they belonged to Rix, and tried to hire him to assist in driving them to the windmill, where they said Rix would meet them. It was further shown, that on the 4th of March, or two days after his return home, appellant came up to one Wash Barker with a letter he said had been written by the Gallaghers about the stolen cattle, remarking, "it was rather late to have received such, a letter." Witness declined to read it, but advised him to destroy it. It was known then that the cattle were stolen.
1. Appellant complains that the court erred in permitting Dave Odom, sheriff of San Patricio County, to testify, over the objection of defendant, that on the 15th of March, 1893, he had a conversation with defendant, then in jail under a charge other than that for which he was being tried, and immediately thereafter telegraphed to his deputy to arrest Charley Gallagher, and he at once went and arrested both the Gallaghers on a charge of theft of the cattle described in the indictment. This testimony should have been excluded, except so much as appellant himself drew out of the witness, to wit, the fact that upon the same day of the conversation the sheriff telegraphed to his deputy to hold Charles Gallagher till he reached there. The court excluded all conversation between appellant and Odom. *358
2. The court did not err in overruling the objection to the evidence of Bynum Terrell as to the declarations of the Gallaghers while driving the stolen cattle, for it is shown that a conspiracy had been formed and the parties were carrying it out.
3. Appellant further complains that the court erred in admitting in evidence a letter written by appellant to Dave Odom, the sheriff, after the interview in the jail, to the admission of which appellant duly excepted. There is no question appellant was in jail when the letter was written. Not having been warned, no statement, written or verbal, of appellant while in jail, can, under the law, be admitted in evidence against him. An examination of the letter shows that it is an assertion of his innocence, but it also contains the admission that appellant had put Sheriff Odom on the trail of the guilty parties, and had he not done so they could not have been found out. The evident purpose of introducing the letter was to show appellant's knowledge of and connection with the crime. To the same end was introduced the fact that Odom conversed with appellant, then in jail, before he arrested the Gallaghers. Also, the letter of date September, 1893, introduced by the State, written by appellant to the district attorney, offering to testify against the Gallaghers whenever he was wanted. The court erred in admitting the letter to Sheriff Odom. It was a strongly inculpatory fact that he only was able to put the sheriff on the track of the guilty parties, for it tended to corroborate the statement of the witness Gallagher; but the evidence to prove such a fact must be legal and admissible. The court, should not have permitted proof of what the sheriff did after conversing with appellant, nor should he have permitted the letter to be introduced.
4. But a serious question is presented in appellant's sixth and seventh assignments of error.
The evidence shows that appellant, if guilty, is an accomplice, and not a principal in the crime. An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands, or encourages another to commit the offense, or who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid. Penal Code, art. 79; Bean's case, 17 Texas Crim. App., 61; Phillips' case, Id., 169; Smith's case, 21 Texas Crim. App., 107; Watson's case, Id., 598.
The evidence shows, that after making the agreement to meet the Gallaghers with the stolen cattle at Burk's windmill and drive them to Beeville, and ship them on the Southern Pacific on cars previously ordered, he did not in fact do so; nor is it shown that any arrangements were made for cars, but on the contrary, ten days after the time of the alleged agreement, he left the town of Beeville with his family and remained in a different county until the 2nd of March, when he returned to Beeville with his family. It was during his absence the Gallaghers *359 drove the cattle. This evidence, in the absence of any notification to the Gallaghers of his intended absence, strongly tends to prove at least a temporary abandonment of the conspiracy, and if so, appellant would be an accomplice and not a principal.
And while the accomplice is guilty of the same offense as the principal (Carlisle's case, 31 Texas Criminal Reports, 547), yet it is well settled in this State that to convict one as an accomplice he must be indicted as such. McKeen's case, 7 Texas Crim. App., 630; Sims' case, 10 Texas Crim. App., 131; Truitt's case, 8 Texas Crim. App., 148; Mills' case, 13 Texas Crim. App., 487; Bean's case, 17 Texas Crim. App., 60; Smith's case, 21 Texas Crim App., 107; Bouldin's case, 18 Texas Crim. App., 637; Phillips' case, 26 Texas Crim. App., 228.
For errors indicated, the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.