Thomas v. State

62 S.W. 919 | Tex. Crim. App. | 1901

Appellant was convicted as an accomplice to the murder of Pomp Trammell, — John Lindley being the principal, — and his punishment assessed at twenty-five years confinement in the penitentiary.

The confessions of Lindley, the principal, were admitted in evidence over appellant's objections. In this there was no error. It was necessary, in order to secure the conviction of the accomplice, to prove the guilt of the principal as alleged, and any legitimate fact or circumstance which showed or tended to show the guilt of the principal was admissible in evidence for that purpose; and this is true whether or not Lindley was on trial. The guilt of the accomplice is dependent upon the guilt of the principal, — that is, there can be no accomplice without a principal; and, in proving the guilt of the accomplice, it is necessary to show the guilt of the principal. So the confessions of Lindley were admissible against him as principal, in proving that he actually did the killing. These confessions and statements of Lindley, however, were withdrawn from the consideration of the jury by the court in the charge. If upon another trial the confessions of Lindley should be used, the court should restrict the jury's consideration in regard to Lindley's guilt only, as they are not facts or circumstances to prove appellant's guilt as accomplice, and can only be used against Lindley to show his guilt as principal.

The court did not err in failing to charge the law applicable to circumstantial evidence. The testimony of Lindley is positive to the fact that appellant advised and urged him to do the killing and furnished him a gun for that purpose, and with said gun he committed the homicide. Under the unbroken line of decisions this relieves the case from being one of circumstantial evidence. Exception was reserved to the charge of the court because it submitted the theory of murder in the second degree; the contention being that, if the testimony of the State be true, it was a killing upon express malice, and therefore murder in the first degree. The evidence is very cogent, showing a cold-blooded killing on the part of Lindley, and the evidence against appellant is to the effect that he urged and advised Lindley to do so, and furnished the gun with which Lindley did the killing. This would have justified a verdict for the higher offense. But can defendant complain because he was given the benefit of a charge submitting the inferior degree of murder? Under the decisions of this State, this question must be answered in the negative. When the indictment charges murder, the party may be convicted of any grade of homicide, and the conviction for the lower grade of murder will not be set aside because the evidence shows the higher grade. Baker v. State, 4 Texas Crim. App., 223; Powell v. State, 5 Texas Crim. App., 234. This principle was expressly recognized in Parker's case, 22 Texas Criminal Appeals, 105, and Fuller v. State, 30 Texas Criminal Appeals, 559.

The verdict is attacked because it fails to specify the degree of murder. The verdict is as follows: "We the jury find the defendant guilty as an accomplice to the murder of Pomp Trammell, as charged in the indictment, and assess his punishment at confinement in the State penitentiary for twenty-five years." Article 712, Penal Code, provides: "If the jury shall find any person guilty of murder they shall also find by their verdict whether it is of the first or second degree; and if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree he is guilty, and in either case they shall also find the punishment." Without interruption, it has been held under this statute that it is absolutely essential to the validity and sufficiency of the verdict that it specify the degree of murder of which the party is convicted. For collation of authorities, see section 1262, White's Annotated Penal Code. It is also as well settled that the accomplice is guilty of the same offense as the principal, although it is necessary to indict him as an accomplice. See section 102, Id., for collated authorities; Carlisle v. State, 31 Tex. Crim. 537. Article 81, Penal Code, provides that "accomplices shall in all cases not otherwise expressly provided for be punished in the same manner as the principal offender." The distinction between principal offenders and accomplices consists in the facts and circumstances which connect defendant with the actual crime. The principal is guilty by reason of the fact that he commits the actual crime; as, in homicide, he does the actual killing, whereas the accomplice advices, urges, or furnishes the means to the principal for the purpose of carrying out the design or committing the offense, he not being present. The accomplice therefore is guilty of the murder, if it be a murder, by reason of the fact that he brings himself within the statutory definition of an accomplice, by furnishing the means or other acts which constitute him such. The crime is the same (that is, it is murder as much on the part of the accomplice as the principal); and, while the case must be charged which makes him an accomplice by reason of the statute, still his ultimate offense is found in the fact of killing (that is, it takes the acts as accomplice, together with the killing by the principal to justify his conviction). So under this statute the accomplice is punished in the same manner as the principal offender. The principal offender would be punished, in this case, if found guilty of murder; and, of course, the verdict against the principal must specify the degree of murder. Then, if the acomplice is punished in the same manner as the principal, it is for murder, and the verdict against him must specify the degree. See authorities already cited. Because of the insufficiency of the verdict of the jury, the judgment is reversed and the cause remanded.

Reversed and remanded.