51 S.W. 911 | Tex. Crim. App. | 1899
Appellant was convicted as an accomplice to the crime of swindling, — the principals being T.J. and N. Singleton, — and his punishment assessed at confinement in the penitentiary for a term of two years, and he appeals.
The indictment alleges the dealings in the matter of transferring the property from the R.P. Rhea Company occurred between the vice-president, N.E. Shands, and the principals, T.J. and N. Singleton. On the trial the State, over appellant's objection, was permitted to prove by Shands and Monger that Monger in fact sold the goods to the Singletons. Shands and Monger testified that the trade was made between Shands and the Singletons, and that all the transactions leading up to the actual separation of the goods, and the delivery of same to the Singletons, occurred between Shands and the Singletons; that Monger was the clerk in the house; that Shands was in charge of the house, and, after the trade was consummated with the Singletons, he selected Monger as the clerk to make the segregation and delivery of the goods to the Singletons. The fact that Monger actually separated and delivered the goods does not constitute a variance between the allegation in the indictment and the proof on this question. Monger was but the servant of Shands in the matter, and he acted under his immediate dictation and orders in delivering the goods.
It is contended the court committed error in submitting the insolvency of the Singletons in his charge. This was very favorable to defendant. While there is no direct testimony as to the insolvency of the Singletons, and, so far as the matter is concerned, we may concede that there is no evidence on the question at all, yet this charge was favorable to appellant, because it authorized the jury to find they were insolvent, before they could convict appellant for advising them to commit the crime charged. In other words, this was a burden upon the State, and could not operate prejudicially to appellant. It was in no manner calculated to injure any of his rights. The court fully instructed the jury with regard to the law of the case, and he especially cautioned them that, before they could convict appellant of being an accomplice, they must find from the evidence that he advised the Singletons to the commission of the offense before they obtained the goods. Hence there was no error in refusing the special requested charge. And in this connection the court, not only in the general charge, but in a special charge requested by appellant, gave this phase of the law to the jury.
Appellant's contention on motion for new trial that the court erred *98 in permitting Williams to testify to appellant's confessions will not be noticed, because a bill of exceptions was not reserved. Nor is there any merit in the contention that the evidence is insufficient to support the judgment. The circumstances, we think, are cogent, and they are supplemented by the confession of appellant. The judgment is affirmed.
Affirmed.
