Smith v. State, 21 Tex. Ct. App. 107

Smith v. State

21 Tex. Ct. App. 107 | Tex. App. | 1886

Lead Opinion

White, Presiding Judge.

Six parties were jointly charged with the theft of the cattle mentioned in the indictment, to-wit, M. M. Smith (this appellant), Jim Smith, Dave Smith, Tom Saunders, Frank Saunders, and Bud Taylor. A severance was had and each of the parties was tried separately. Bud Taylor was tried before this appellant, but his conviction was set aside and a new trial awarded him after the conviction of this appellant.

We will make a brief and succinct statement of such of the material facts shown in evidence as are necessary to explain and illustrate the questions presented on this appeal. Thirteen head of cattle belonging to Eugene and W. A. Trammell, branded some WT (with a bar below), some WT (with a bar below and semi-circle above), and others XZ on the hip, and all branded SD on the neck, were running as estrays in the neighborhood of one Isaac Sweet, in Erath county, and had been for some months prior to the fifteenth day of July, 1885. On or about the fifteenth day of July, Jim Smith and Dave Smith came to Sweet’s and said they were looking for a bunch of cattle branded SD, and Dave said he had a power of attorney from his brother to get the cattle. Dave Smith, Jim Smith, Tom and Frank Saunders hunted for and got up the cattle and drove them off on the fifteenth of July, M. M. Smith and Bud Taylor neither being present, but both being at their homes in Parker county, some forty miles distant.

Prior to the date of the taking, however, it is made to appear by the evidence that on the third of July, Bud Taylor proposed to the witness James Lentz that witness should go with another party and get a bunch of stray cattle, and bring them up to Cartersville prairie, where he, Taylor, would meet him with some of his, Taylor’s own cattle, and they would throw the cattle together, take them to Fort Worth and there sell them and divide the profits. Taylor owned some forty or fifty head of cattle branded WT. The witness Lentz declined to go. A day or so afterwards, some time between the fourth and seventh ■ of July, Bud Taylor was seen on two different occasions at appellant M. M. Smith’s house, holding private conferences with him. During the week succeeding these conferences appellant M. M. Smith borrowed from the witness Morris a horse, saying he wished to go after a bunch of cattle which he had bought out west. From some cause not explained he did not go, but he let hie brother Jim Smith have the borrowed horse to ride after the *119cattle. On Sunday, the twelfth, this defendant, having doubtless determined not to go in person, got the witness Henry Lentz to write for him a power of attorney authorizing Dave Smith to gather cattle branded SD; and on the same day defendant proposed to James Lentz, the samé party to whom Bud Taylor had made his proposition, that he, Lentz, should go with his, defendant’s brother Dave Smith down below Gordon after a bunch of cattle he, defendant, claimed to have bought, and at the same time explained to witness why Bud Taylor could not go. Lentz did not go, but Jim Smith went with his brother Dave, and they started on the twelfth. As above stated, these parties, Dave and Jim Smith, and Tom and Frank Saunders, were together and took the cattle and drove them from Isaac Sweet’s place in Erath county on the fifteenth of July. On the sixteenth of July, Tom Saunders and a man by the name of Brooks were seen in Parker county, on the Stephenville and Weatherford road, with a bunch of some ten or fifteen head of cattle, taking them in direction of Weatherford. Thirteen miles south of Weatherford, in Parker county, the witness Wesley, on the sixteenth of July, and about twelve or one o’clock in the day, saw Jim Smith and Dave Smith, and a third party whose description suits exactly the description of Tom Saunders, driving a bunch of cattle containing between twenty-five and thirty head, going in the direction of Weatherford.

After the return of Jim and Dave from the expedition, in a conversation with the witness Morris, whose horse had been ridden by Jim, Jim Smith told witness that they had driven the cattle through to Cartersville prairie, “where Monroe (M. M., the appellant,) had gone to get them to take them to Fort Worth.” Morris asked him “if he had got the cattle for Bud Taylor?” and he said “yes.” “I said Monroe (M. M.) says they are his cattle; to which Jim replied, ‘ I believe they are partners.’ ” After Jim’s return Monroe left. Morris, the witness, says: “When Monroe rode off he said he was going to take the cattle to Fort Worth to sell them. He returned Sunday evening and I asked him if he had sold the cattle. He said, ‘Ho; cattle are off like hell,’ (by which I understood him to mean that the price of cattle was low.) He then added that he had left the cattle in a pasture near Fore Worth.” About the last of July, Eugene Trammell, one of the owners, recovered these cattle at the place of a man named Ketchum, in Parker county. M. M. *120Smith, this appellant, gave him an order on Ketchum for the cattle.

Such are the material facts established by the evidence. A number of bills of exceptions to the admission,'over objection, of testimony claimed to be irrelevant, illegal and inadmissible, appear in the record.

It is insisted that if any conspiracy is established between ap-' pellant and Bud Taylor, then that such conspiracy is not shown to have existed on the third of July, and that any acts, declarations or conduct of Taylor, in the absence of defendant, prior to the conspiracy, and not in furtherance thereof, cannot be used as evidence against this defendant. And we are cited to the general rule as announced in Cox, Ryan et als. v. The State, 8 Texas Court of Appeals, 254, to the effect that the evidence of what was said and done by the other conspirators must be limited to their acts and declarations done while the conspiracy was pending and in furtherance of the design, “what was said by them before or afterwards not being within the principles of admissibility.” This rule is unquestionably correct. The old rule, however, that a conspiracy must first be established ipso facto before proof of acts and declarations of the individual conspirators are admissible against each other is now exploded. “Ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator the conspiracy should itself be first established prima facie, and to the satisfaction of the judge of the court trying the cause; but this can not always be required. It can not well be required where the proof depends upon a vast amount of circumstantial evidence—a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually exists, it will he considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.” (Cox v. The State, supra.) A conspiracy to commit crime is rarely ever susceptible of proof by direct or positive proof.

1. It is objected that the evidence permitted of what transpired between the co-conspirator Bud Taylor and the witness James Lentz on the third of July, with reference to Taylor’s proposition that the witness would go and get the stray cattle and bring them to Cartersville prairie, where Taylor would throw some of his own cattle with them, and drive them off and *121sell, and divide profits, were statements of independent acts and declarations of Taylor before a conspiracy is shown to have existed between defendant and Taylor. We are of opinion that the circumstances, whilst not conclusive, perhaps, are sufficiently cogent to warrant the inference that a conspiracy between the parties did exist at that time. Taylor tried to induce the witness to go after a bunch of stray cattle, which were to be driven to Cartersville prairie, and there mixed with other cattle. Défendant sent his brothers to get a bunch of stray cattle, he and Taylor having had a conference after Lentz refused to go. The brothers go and get the stray cattle, thirteen hea,d, mix them with ten or twelve head the next day, drive the twenty-five or thirty head to Cartersville prairie. One of the brothers says that he has brought back the Taylor cattle, and that his brother M. M. (appellant) and Taylor are partners in the cattle. We think these facts warrant the inference that the conspiracy already existed when the conversation occurred between the witness Lentz and Taylor on the third of July. At all events we are not prepared to say, in view of the other evidence, that the'court erred in admitting this .testimony.

2. It is insisted that the court erred in admitting in evidence, over objection of defendant, the testimony of Guyger to the effect that on the sixteenth of July, the day after the alleged stolen cattle were taken, he, the witness, saw Tom Saunders and Willis Brooks' driving ten or twelve head of cattle along the road towards Weatherford. The objection is that there is no evidence that these cattle were stolen, or, if stolen, that they were stolen at the same time the cattle in question were stolen; or that this appellant was in any manner connected with these particular cattle. Tom Saunders was one of the parties who, in connection with Jim and Dave Smith, took and drove the stolen animals from Sweet’s. There were thirteen cattle taken. The witness Wesley says that he saw Jim and Dave Smith, and a man whose description suits that of Tom Saunders exactly, about two hundred and fifty yards south of the Brazos river, at Buckner’s crossing on the Stephenville and Weatherford road, driving a bunch of cattle of twenty-five or thirty head. Guyger had seen Brooks and Tom Saunders before they got to Buckner’s crossing. At Buckner’s crossing Tom Saunders is seen with Dave and Jim Smith, and their herd of thirteen head has increased to twenty-five or thirty head. If for no other purpose, we are of the opinion the evidence was entirely legitimate to show the manner of, and *122to account for, the increase in the herd of the stolen cattle. But, besides this, the defendant had told Morris that he had bought thirty or thirty-two head of cattle out west, and that he was only to pay for what he got; and this was only a day or two before Jim and Dave Smith started after the cattle. The rule is that evidence of other offenses than the one for which a party is on trial, or evidence of criminal transactions of a similar character, is admissible “when it is necessary to establish identity by developing the res gestee, or making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial.” (Galbraith v. The State, 41 Texas, 567.) We are clearly of the opinion that this evidence tended to establish the identity and res gestee of the transaction, and was a legitimate link in the chain of circumstances connected with the crime for which defendant was on trial.

3. But it is most urgently and seriously contended that the court erred in charging the law as to principal offenders with regard to this defendant’s liability, because it is said that there was no testimony upon which it could possibly be based, the evidence having clearly established that defendant was not present and actually participating in the theft at the time the animals were taken by Jim and Dave Smith. ■

1 ‘All persons are principals who are guilty of acting together in the commission of an offense.” (Penal Code, Art. 74.) But again, “if any one, by employing a child, or other person who can not be punished, to commit an offense * * * * or by any other indirect means, cause another to receive an injury to his person or property, the offender, by the use of such indirect means, becomes a principal.” (Penal Code, Art. 77.)

Mr. Bishop says: “ One plain proposition is that there can be no crime without a principal. There may be more principals than one, but there must be at least one. Therefore a man whose sole will procures a criminal transaction is principal, what ever physical agencies he employs, whether he is present or about when the thing is done.” (1 Bish. Crim. Law, 7 ed., sec. 640.) Again he says: “And because there must always be a principal, one is such who does the criminal thing through an innocent agent, though personally absent. (Id., sec. 651.)

But the question is, can a party under any circumstances be a principal offender under our statutes when he is not present at the time and plane, and participating in the commission of the crime, where the party actually committing it is not an innocent *123but a guilty agent, by virtue of his own guilty knowledge and intent? Mr. Bishop, as a rule, says not, but holds that the relation of the instigator becomes changed from that of a principal to that of an accessory before the fact (or an accomplice), on account of the changed relationship of his agents. He says: “But, if the agent employed incurs guilt, then the employer is simply an accessory before the fact.” (Id.) Only two authorities are cited in support of the text, and they have not been accessible.

If correct in principle, the doctrine cannot be of universal application under our code, where all persons are principals who are guilty of acting together in the commission of an offense. Parties may act together, whether they are bodily present together or not.

We believe that the distinction drawn by us between principal offenders'and accomplices as known to our code has been as clearly and accurately stated, as we are able to present it, in the cases of Cook v. The State, 14 Texas Court of Appeals, 96, and Bean v. The State, 17 Texas Court of Appeals, 61. In the former case it is said: “We are of opinion that the proper distinction between these two characters of offenders is this: The acts constituting an accomplice are auxiliary only, all of which may be and are performed by him anterior and as inducements to the crime about to be committed; whilst the principal offender not only may perform some antecedent act in furtherance of the commission of the crime but, when it is actually committed, is doing his part of the work assigned him in connection with the plan and furtherance of the common purpose, whether he be present where the main fact is to be accomplished or not. Where the offense is committed by the perpetration of different parts which constitute one entire whole, it is not necessary that the offenders should be in fact together at the perpetration of the offense, to render them liable as principals. In other words, an accomplice under our statute is one who has completed his offense before the crime is actually committed, and whose liability attaches after its commission by virtue of his previous acts in bringing it about through the agency or in connection with third parties. The principal offender acts his part individually in furtherance of and during the consummation of the crime.”

In Bean v. The State, it is said: “'The dividing line between the two is the commencement of the commission of the principal offense. If the parties acted together in the commission of the *124offense, they are principals. If they, agreed, to commit the offense together, but did not act together in its commission, the one who actually committed it is the principal, while the other, who is not present at the commission, and who was not in any way aiding in its commission, as by keeping watch or by securing the safety or concealment of the principal, would be an accomplice. To constitute a principal, the offender must either be present where the crime is committed or he must do some act during the time when the offense is being committed which connects him with the act of commission in some of the ways named in the statute. Where the acts committed occur prior to the commission of the principal offense, or subsequent thereto, and are independent of, and disconnected with, the actual commission of the principal offense, and no act is done by the party during the commission of the principal offense, such a party is not a principal offender, but is an accomplice or an accessory according to the facts. ”

In Welsh’s case, 3 Texas Court of Appeals, 413, where the employer ordered his servants to take all the cattle they could find, and that in the meantime he would go ahead and make arrangements to ship or sell them, he was held to be a principal offender, because he was engaged at the time of the theft in performing his part in the consummation of the conspiracy to steal and dispose of them.

In Scales’s case, 7 Texas Court of Appeals, 361, part of the conspirators were to steal the horses in question, whilst the rest were to get up provisions and an outfit to enable them all jointly to take the horses to Fort Elliott and sell them. (See statement in McKeen v. The State, 7 Texas Ct. App., 631.) They were all held principal offenders because doing their separate parts and acting together in consummating the conspiracy.

In McCampbell v. The State, 9 Texas Court of Appeals, 124, it is said: “If the facts should show an actual participancy by appellant in the original fraudulent taking, a conviction may be sustained for the offense charged, although the appellant may not have been personally present at such taking.”

In Cohea v. The State, 9 Texas Court of Appeals, 173, it is said: “He need not be actually present at the taking, if the act was committed in pursuance of a common intent and a previously formed design where the mind united and concurred with that-of the actual taker.”

As before stated, evidence' in proof of a conspiracy to commit *125crime will generally, from the nature of the case, be circumstantial. It is not necessary to prove that the defendants came together and actually agreed in terms to have that design and pursue it by common means. If it be proved that defendants by their acts pursued the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object (Slough’s case, 5 Fed. Rep., 680), and under our statute such acting together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. The State, 4 Texas Ct. App., 492; Heard v. The State, 9 Texas Ct. App., 1; Wright v. The State, 18 Texas Ct. App., 358), and they are all principals and acting together as long as any portion or object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Hence, “where in larceny it was shown that the conspiracy extended as well to the dividing of the stolen goods as to the theft; what one did between the stealing and the dividing was deemed good evidence against both.” (2 Bish. Crim. Proc., 230, citing Scott v. The State, 30 Ala., 503.) This doctrine is expressly recognized and adopted by us in O’Neal v. The State, 14 Texas Court of Appeals, 582, and the same rule is announced in Allen v. The State, 12 Lea, Tennessee, 424.

Now, in applying the law as above stated to the case in hand, if Jim and Dave Smith were the innocent agents of M. M. Smith, then M. M. Smith was a principal. If there was a conspiracy between all the parties to commit the theft, the part to be done by Jim and Dave being to take the property, and the part assigned to M. M. being the sale after it was so taken, then all were principal offenders.

The charge of the court was an able and complete elucidation of these principals of law as applicable to the facts; and it was moreover expressed in such manner as that the rights of the defendant were specially guarded against any evidence which might in certain contingencies be inapplicable to his connection with the crime. No additional instructions were asked. '

•We have given this record our most careful attention and consideration, and, under the law and facts, we have found no *126error either in the conviction or the rulings complained of as error. The judgment is affirmed.

Opinion delivered March 23, 1886.

Affirmed.

Dissenting Opinion

Dissenting Opinion by Hurt, J.

Hurt, Judge.

This is a conviction for theft of cattle, the property of Eugene and W. A. Trammell. The point raised on the indictment was disposed of in the Jim Smith case, a companion case to this decided at the present term. The view I take of this case renders necessary a discussion of the other questions raised.

The theory of the State is that appellant, with others, conspired to steal the cattle in question, and that in pursuance of this conspiracy the cattle w.ere taken by others, and at the time of the taking the appellant was doing some act in aid of those actually engaged in the taking, and was therefore a principal in the theft. I desire to discuss, first, what acts constitute the actor a principal under our code; second, was appellant, not being present at the taking, engaged in any act which would make him a principal?

First question: Who are principals under our code?

How, I desire to state and prove the following proposition: That, where the accused is not present at the commission of the offense the statute specifically points out what he must be doing to constitute him a principal. Then to the statute. Article 74, Penal Code, declares that all persons are principals who are guilty of acting together in the commission of an offense. What are we to understand by “acting together,” as used in this article? Does it mean that if the parties act together in the most comprehensive sense of the expression, that they are acting together within the meaning of this article? I think not, for, if so, why provide in Article 75 that “when an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts, or encourage by words or gestures, those actually engaged in the commission of the unlawful act, they are principals? Would not such be “acting together,” and hence principals under Article 74?

These observations apply also to those who keep watch so as to prevent the interruption of those actually engaged in the commission of the unlawful act; in fact, to each and every state *127of facts constituting the actor a principal by the provisions of Article 76. In one sense they are acting together in the commis - sion of the offense, but not in the sense of Article 74.

I believe that much light can be obtained from the common law upon this subject, and when we consult it we will find that our code has departed but little from the common law. At common law there are principals in the first and second degrees. A person who is a principal within the meaning of Article 74 would at common law be a principal in the first degree; hence I believe that a principal under Article 74 “is he that is the actor or absolute perpetrator of the crime.” Mr. Blackstone says: “A man may be a principal in an offense in two degrees. A principal in the first degree is he that is the actor, or absolute perpetrator of the crime; and in the second degree, he who is present, aiding and abetting the fact to be done.” To be a principal in the second degree it is not necessary for the party to be actually present; for, says this learned writer, “which presence need not always be an actual, immediate standing by, within sight or hearing of the fact, but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance.” What great similarity in the common law and our code so far! So striking is this similarity, that I have no doubt but that the provisions of the code upon this subject were taken from the common law.

This similitude does not stop with Articles 74 and 75, but extends to Article 77; for, says the author, “and this hath also other exceptions; for in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it, who is ignorant of its poisonous quality, or giving it to him for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed. And the same reasoning will hold with regard to other murders committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous effect; as by laying a trap or pitfall for another, whereby he is killed; letting out a wild beast with intent to do mischief, or inciting a madman to commit murder, so that death therefrom ensues. In every one of these cases the party is guilty of murder as a principal in the first degree. For he can not be called an accessory that necessarily presupposes a principal; and the poisoning, the pitfall, the beast, *128or the madman, can not be held the principal, being only the instruments of death. As, therefore, he must be certainly guilty either as principal or accessory, and can not be so as accessory, it follows that he must be guilty as principal, and if principal, then of the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist.” (Bl. Com., vol. 2, b’k 4, p. 32.)

We have just such principals as are described by Mr. Blackstone. In fact our code is not so specific as the law writer. Suppose the means mentioned in Article 77 are not resorted to, and the party is acting alone, without aid from1 others in any manner, our code assumes him to be a principal.

We have found that “acting together” in Article 74 means that the persons must be the actors, the absolute perpetrators of the crime, or principals in the first degree at common law; and we have found that the persons described in Article 75 were principals in the second degree at common law, and are made principals by our code, there being no degrees in principals in this State. Those, to be such, must if present know the unlawful intent, aid by acts, or encourage by words or gestures. Aid or encourage whom? Those actually engaged in the unlawful act, the absolute perpetrators of the crime. Or those who, not being actually present, keep watch so as to prevent the interruption of those engaged, the absolute perpetrators of the crime, in the commission of the crime. If not the absolute perpetrators of the crime, we are informed just what the person or persons must do, or be doing, to constitute him or them principals.

.We now proceed to notice some principals, made so by our code, who are not actually or constructively present. They are found in Article 76. How these persons are principals, not at common law, but made so by our code. Who are they, or what acts must they do, or be doing, when the offense is being committed, to constitute them such? They must be engaged in procuring aid, arms, or means of any kind. For what purpose? To assist in the commission of the offense. At what time or when must these persons be engaged in procuring aid, arms, or means of any kind? While others—the actual perpetrators—are executing the unlawful act. Or, to be a principal under Article 76, the persons must endeavor to do what? To secure the safety or concealment of the offenders. When? At the time of the commission of the offense. The persons keeping watch and the persons doing, or endeavoring to do, the acts and things men*129tioned in Article 76, are the only persons who are principals when not present at the commission of the unlawful act.

It is of course understood that the party, or parties mentioned in Article 77 are principals, though not present, for they must of necessity be principals. An accomplice presupposes a principal offender, and can not exist without such.

I find, therefore, that our code specially enumerates the acts to be done, and the exact time, with reference to the main act at which they are to be done or endeavored, which constitute the actors principals; and it is evident that those performing the specified acts, and the actual perpetrators of the crime, in one sense are guilty of acting together in the commission of the crime. This being the case, if those who are present with knowledge of the unlawful intent, aid, etc., or, not being present, keep watch, or, not being present, are guilty of the acts specified in Article 76, are included in Article 74 because acting together, then I ask why enumerate at all ?

I therefore conclude that the following persons are principals:

First. They who are guilty of acting together—the actual absolute perpetrators of the crime—in the commission of an offense. (Art. 74.)

Second. Those who are present, with knowledge of the unlawful intent, aid by acts, or encourage by words or gestures, the actual, absolute perpetrators of the crime, in the commission of the offense. (Art. 75.)

Third. Those who, not actually present, keep watch so as to prevent the interruption of those engaged in committing the offense. (Art. 75.)

Fourth. All who, whether present or absent, engage in procuring aid, arms, or means of any kind, to assist in the commission of the offense, while others—the perpetrators—are executing the unlawful act. (Art. 76.)

Fifth. Persons, whether present or absent, who endeavor at the time of the commission of the offense, to secure the safety or concealment of the offenders. (Art. 76.)

Sixth. All who advise or agree to the commission of an offense, whether they aid or encourage those actually engaged in the commission of the offense or not, if present, are principals. (Art. 78.)

I will not at this point treat of the principals mentioned in Article 77, but will notice them before I conclude.

The writer has agreed to and expressed views, which will be *130found in the opinions of this court, at variance with the doctrine here stated; but, after a more thorough ■ investigation of the subject, I have come to the conclusion that the views here expressed are correct, and that those elsewhere expressed are wrong.

Applying the rules here stated to the facts of this case, was there any evidence tending to show appellant as principal in the offense charged? Is there the slightest fact, even presumed from other facts, to show that defendant, M. M. Smith, either kept watch, engaged in procuring aid, arms, or means of any kind, to assist in the commission of the theft; or that, at the time of the commission of the offense, he endeavored to secure the safety or concealment of the offenders? Hone whatever. It is conceded that he was not present, but at home, some forty or fifty miles from the place of the theft.

But let us concede that my views as to what is necessary to constitute a party a principal, are wrong, and that the doing of other acts besides those mentioned in the code may make the actor a principal, and that our opinions on this subject are correct when viewed with relation to the facts of each particular case, still the question occurs, are there any facts in this record which bring the appellant within the rule announced by this court in any case holding him a principal? Are there facts in this case which make or tend to constitute appellant a principal under the rules stated in any case upon this subject? If there be, I have not been able to discover them.

As before stated, the theory of this prosecution is that M. M. Smith conspired with others to steal the cattle, and that Jim and Dave Smith, and perhaps others, went to Erath county, took and drove the cattle to Parker county, and there delivered them to appellant; that Jim and Dave Smith and the others were co-conspirators with appellant, and that they were the guilty takers, the actual captors, while appellant at the time of the taking was engaged in the doing of some act in aid of those actually engaged in the taking; and hence that appellant was a principal. Let us concede this; still there must be proof to sustain this theory. The State, however, failed to make proof of the last mentioned proposition, to-wit, that appellant was, at the time of the taking, rendering aid or assistance to those engaged in the fraudulent taking. Upon this theory, therefore, the State has failed to make out its case.

Is there another theory, depending upon the guilt or innocence *131of the actual takers of the cattle, presented by the facts, upon which the appellant might have been legally convicted if it had been presented to the jury by proper instructions? 1 think so. I stated, supra, that I would notice Article 77, bearing upon the subject of principals. Now let us suppose that M. M. Smith, intending and contriving to deprive the owners of the cattle in question, and to appropriate them or their value to his own use, induced Jim and Dave Smith, or others, to believe that the cattle were his property, and so believing, they or either of them went to Erath county, as the employes of M. M., and honestly and in good faith took the cattle as the property of M. M. Smith. Would M. M. Smith be an accomplice in this transaction? By no means, for there can be no accomplice without a principal offender. An accomplice necessarily presupposes that there is a principal—at common law, a superior. (4 Bl. Com., 34.) Sir William Blackstone upon this subject says that if a person, by laying a trap or pitfall for another, whereby he is killed, or letting out a wild beast with intent to do mischief, or inciting a madman to commit murder, so that death therefrom ensues, that in every such case the party thus offending is a principal in the first degree. “For,” says he, “he can not be called an accessory (accomplice); that necessarily presupposes a principal.”

But under our statute is a party employing an innocent person —innocent of the guilty purpose of the employer—though such person be subject to punishment, be of sound mind and discretion, be of years of maturity, and liable to be punished to the full extent of the law—liable as a principal offender? That such a person is a thief there can be no doubt, and if a thief, evidently he is the principal, there being no other guilty party to the transaction. If the trap, the pitfall, the wild beast, or the madman be the instruments of death—the means used by the murderer to commit the murder, etc.—may not a rational, responsible person also be the innocent means of others, through, or by whom, crime, can be committed?

Article 77 provides that if any one, by employing a child, or other person who cannot be punished, to commit an offense, or by any means, such as laying poison where it may be taken, * * * or by any other indirect means, cause another to receive an injury to his person or property, the offender by the use of such means becomes a principal. It is remarkable that in treating of a person as the means, Blackstone names a madman, and our statute a child or a person who cannot be punished, and this *132fact misled the writer in Lott’s case, decided at this term of the court. (20 Texas Ct. App., 230.) However, after a more thorough investigation of the subject, I reach the conclusion that, if a person employs a perfectly responsible man or person to commit acts constituting crimes, and that the person employed is ignorant of the unlawful intent (in this case the fraudulent intent), the person so employing such party is guilty of the offense—guilty of the acts committed by his innocent agent; that such person is merely the instrument used by the guilty party—the employer—and that the acts of such innocent agent are the acts of the principal. Hence, if Jim Smith and Dave Smith took the cattle, honestly believing them to be M. M. Smith’s, without knowledge of his thievish intent, they would not be guilty, but M. M. Smith would be. Jim and Dave would in such case be the means resorted to, the instruments used by M. M., and their acts would be his acts.

Again: In such case M. M. would be a principal necessarily, but if Jim and Dave were guilty co-conspirators with M. M., he, having advised, commanded, or employed them to commit the offense, and not being present, would at common law be an accessory before the fact, and under our code an accomplice. Upon this subject Mr. Bishop says: “Innocent Agent—Such an agent is one who does the forbidden thing, moved thereto by another person, yet incurs no legal guilt, because either not endowed with sufficient mental capacity, or not made acquainted with the necessary facts.” (1 Crim. Law, sec. 310.)

“To be a principal he need not be present at the perpetration of the wrong. Thus a dose of poison, or an animate object like a human being, with or without general accountability, may produce death or other injury in the absence of him whose will set the force in motion, and in such a case the absent person is a principal, whenever the immediate actor is not guilty in the particular transaction. If the immediate actor is guilty, the other, being absent, is only an accessory.” (Id., 651.)

It will be seen from these questions that if the instrument be a person (though subject to punishment; competent in every respect to commit the offense if he has knowledge of the guilty intent of his employer) who is innocent, who acts in ignorance of his employer’s guilty purpose and design; the employer, his principal,.would be guilty, the agent’s acts being his acts. He is guilty not as an accomplice, but as principal offender. If, however, his agent is a co-conspirator, has knowledge of his em-*133plover’s felonious or fraudulent intent, lie, the agent, becomes the principal, and the employer the accomplice, unless the employer be a principal by reason of some other of the provisions which are discussed supra.

To condense:—If A., intending to fraudulently deprive B. of his stock, and to appropriate the same or its value to his own use and benefit, employs C. to take such stock, C., being ignorant of A.’s fraudulent intent, and hence innocent of a fraudulent taking, and 0. takes said stock from the possession of B., A. would be guilty of the theft of such stock, and be guilty as a principal. But if C. has knowledge of A.’s fraudulent intent, and takes the stock, 0. would be guilty of the theft as principal, and A., not being present, would be guilty of the theft as an accomplice, these being all the facts bearing on the question of principal vel non.

These propositions render the insertion of a count charging M. M. Smith as an accomplice of the highest importance, for, if Jim and Dave be guilty, M. M., under the facts, is an accomplice. If they are innocent, M. M. may be guilty as a principal.

Now, in this case M. M. Smith has been convicted as a principal, with Jim and Dave Smith as the guilty takers, without evidence that M. M. was doing anything at all in aid of the taking. This is erroneous; for the theory that Jim and Dave may- have been innocent agents, and that M. M. used them as the means or instruments by which to accomplish the theft, was not submitted to the jury.

Affirmed.

Opinion delivered March 23, 1886.