*1 Byers v. defendant. than that of the mony other 2d 331. 310 S.W. Texas Cr. by testi- is raised may and often of self-defense be The issue defendant, complained and the that of the
mony other than testimony necessarily reference to absence had remarks issue, alone. not to by any could raise witness that and we conviction sustain the sufficient to The evidence is error. find no reversible judgment is affirmed.
Lois State. Green Sherrad 30,003. 1958. December
No. Mitchell, Dallas, L. for
Jаmes Attorney, Wade, F. Alex- Henry District William Criminal Boivie, Montgomery, A. D. ander, Jim Assistants Homer G. Douglas, Dallas, Attorney, Attorney, and Leon State’s District Austin, the state. Presiding Judge. MORRISON, marijuana; punishment, sale of thirteen
The оffense years. light in the most the evidence favorable to discuss
willWe Narcotics Division Agent Richards Bob the state. Safety June, 1956, testified that Public Department of working while city Dallas, undercover in the he caused him- placed self to jail got where he know certain inmates *2 present; upon there that way his release he made his to an es- tablishment known Barbecue, as the оf House and there became acquainted appellant with the employed; who was there that lengthy after a agreed appellant sell, conversation the offered to and he buy, pound marijuana to one price of $50.00; for the that, appellant marijuana since the did not have the available and person, since Richards did not have the entire on his $50.00 it was that Richards following day should return the and marijuana; receive the they parted paid but that before he the appellant agreed purchase price and $10.00 that he did not thereafter see Richards testified further that he returned to the following morning House of Barbecue the and approached by Robson, was appellant one Don the not presеnt, who ready; told him that the “stuff” paid was that he might Robson and received instructions to $40.00 where he find the cached. Richards followed instruc- Robson’s tions and stipulated found the sack which was to cоntain mari- juana. At no time Richards’ conversation with was Robson appellant’s the name appellant ever mentioned nor had the men- tioned the name of Robson in his conversatiоn with Richards. urged very
The state has the novel contention that the “sale” drug of the narcotic appellant for which was convicted took place on Richards’ first visit to the barbeсue establishment and complete appellant transaction when offered sell to pound marijuana Richards one which he did not have avail- able. If this was a appellant transaction for which the was con- victed, then this case must be reversed because of admission in hearsay testimony concerning' evidence of the the later transac- tion between and State, Robson Richards. Roebuck v. 85 Texas 656; Rep. Cr. 213 S.W. Anderson v. 87 Texas Cr. Rep. 641, 782; Oakley S.W. 204; Juris., 60, p. 123, 18 Texas Sec. cases there cited. If the conviction was transaction, for that the concerning evidence the transaction between Robson and Rich- hearsay ards was because it was had presence outside of the and, appellant record, the under this no connection is shown appellant between and Robson. The record does not show that appellant and Robson even knew each other or were ever seen together. appellant It is shown that employed was at the' Barbecue, showing House of no such but is made as to Robson. The most evidence shows that two different sep- men on days company arate and not in with each other and at different public place times talked to state’s in a witness about the sale marijuana. If the first transaction the conviction was had for testimony apрellant Richards, the trans- between about clearly hearsay action appellant. as to between Richards and Robson was upon If wholly conviction was based or in trans- upon thеory Richards, action between it must Robson co-principal that was sale of mari- with Robson juana by to Richards. Robson degree any
There is not in this record in even remotest appel which establishes or tends to establish co-principal lant “principal” was with Robson as is defined in Article succeeding1 65 of the Penal Code and in the four articles specify may which the different situations in which one become *3 a principal accomplice might or in crime. It here remarked appellant principal that the was convicted as a offendеr and was charged accomplice. not with an
If, law, as a matter of a sale occurred when Richards talked to delivery marijuana, Robson and took of the then the trial clearly failing charge court was prin- in error in to on the law of cipals and the upon law of circumstantial evidence. If another trial the issue, give raises the the court should the charges requested. questions argument
The by raised the state’s counsel will probably again not occur and will not be discussed. judgment
The is reversed and the cause remanded.
WOODLEY, Judge (dissenting). appellant’s
It was contention that the court should instruct jury they that actually unless believed “thаt the sale was * * * by by consumated the defendant of the mari- purchaser” huana to the acquit. to majority opinion contention, does not sustain such
though opinion the effect of the is to do so. question There is no that but the state’s a evidence shows
design, plan scheme narcotics, appellant’s and to sell part being agreement, to make payment collect a down and instruct buyer narcotics, to return for the another to conclude the agreed collecting price by transaction the balance of the drug had, buyer in the mean- where the narcotic direct time, been stashed. agreed
Appellant, pound who to sell Richards a purchase price $50, and instructed received a of the day purchase, prin- а for his Richards to return the next cipal was marijuana. acted with in the sale of Robson principal marijuana. sale in the of the proof has of the commission of an of- This court held аcting together persons principals as is two or more fense conspiracy a them to sufficient to between commit establish allegation conspiracy The absence оf not material. offense. 167, al 261 App. 254, et Sinclair quoted as from Cox v. wherein we follows:
“* * * acting together, an when two or more are found with offense, intent in the commission of an the common unlawful design acting together ipso conspirators makes them facto — n body individuality —endows them with the as attribute merges itself; conspiracy act in to do the the act and that any principal previous acts and of each or such declarations pursuance plan, tending to throw offenders light upon it or motive or intent which with it was com- legal mitted, is and should be and admissible evidence received *4 against all, indicted, prosecuted, tried each and whether separately.” jointly or Young State, Rep. 378, Texas 201
See also v. 150 S.W. Cr. 46, 50; State, Rep. 190, 2d v. Texas 185 Whiteheаd 148 Cr. S.W. 2d 725. conspiracy may by be shown circumstantial evidence.
Montoya State, 158, 199, Rep. v. 150 Texas 2d 164. Cr. S.W. a co-conspira
It is well settled acts and declarations during conspiracy against conspira tor are admissible other no conspiracy tors. The rule that must first be established longer State, Rep. Sapet in this state. obtains v. 159 Texas Cr. 620, 154, 158, State, cited; 266 v. 149 S.W. 2d and cases Counts 267; Aguero Rep. 348, State, Texas Texas Cr. 194 2d v. 164 S.W. 265, Rep. Cr. 2d 298 822. S.W.
123 stated, of Robson and declarations the rule acts Under the re- the collection in against admissible price therefor were purchase mainder Evi- on Sapet Sapet, supra, quoting from Abbott v. dence, p. 190 621: “ engaged that, persons are familiar rule when several ‘The illegal design,
together the actions in of an the furtherance together pursuance of in conspirator, made declarations of one object, are plan, reference to the common concerted and with though pres- against in their competent, not made the others ence.’ again author, pag'e says: 621
“And the same on “ ‘Slight parties evidence of concert or collusion between illegal to an admits of the acts and declara- transaction against already stated on tions of one the others under the rule ” page 190.’ charge failing The trial not err in on the law of court did being princiрals, appellant principal offense. actor Jur., 678, 97; p. State, 24-A Texas Rep. 575, Perez 141 Texas Cr. Sec. v. 402; State, Rep. 150 2d Durham v. 112 Cr. S.W. 395, 1092; Rep. S.W. Hunter v. 119 Texas Cr. 2d 969. S.W. charge required,
Nor on there circumstantial evidence supporting allegations direct evidence of the indict- ment, Digest, 814(17), cited, including 12 Texas and cases Dodd 2d 263. charge
The court’s defined a sale as “the transfer of having property some value to another for considera- valuable V.A.P.C., 1(10), tion.” Art. 725b defines as fol- Sec. “sale” “ barter, exchange, gift, lows : for, includes or or there- ‘Sale’ offer any person, аnd each such transaction made whether agent, principal, proprietor, servant, employee.” or *5 Appellant’s pound offer to Richards to sell a agreement buy it cоnsideration of and Richards’ $50 payment purchase price, delivery his as a of the $10 day, payment to be made the next followed indicatéd, fully in the manner satisfied either balance $40 definition.