Watson v. State, No. 3931

No. 3931 | Tex. App. | Jun 23, 1886

Lead Opinion

Willson, Judge.

In our opinion, the evidence proves that the defendant was a principal in the commission of the theft. It shows that he entered into an agreement with Dickerson, the substance of which was that Dickerson would steal hogs and bring them to defendant’s house, where they were to be slaughtered and the meat salted and cured into bacon, and the bacon was to be divided equally between said Dickerson and defendant.

In pursuance of this agreement Dickerson, assisted by Owens, who had been induced by Dickerson to engage in the theft, stole Long’s hogs and drove them to defendant’s house, where they were penned, slaughtered, and the meat salted and packed away in defendant’s smoke house. Defendant was present and assisted Dickerson and Owens in penning, slaughtering, and cleaning the hogs, and in salting and packing away the meat. It is further shown by the evidence that, in pursuánce of the agreement between Dickerson and defendant, while Dickerson and Owens were engaged in committing the theft, the defendant was performing the part assigned him, by preparing the pit, fire, pots, kettles, and salt necessary for the accomplisment of the theft, and without which the theft could not have been so readily and so safely completed.

Opinion delivered June 23, 1886.

Although he was not actually present when the hogs were taken, he was engaged in procuring and supplying means to assist in the commission of the offense, while Dickerson and Owens were executing the unlawful act. (Penal Code, Art. 76.)

The learned judge before whom the case was tried delivered to the jury a full and lucid charge, wherein the distinctions between a principal and an accomplice, and between a principal and a receiver of stolen property, were clearly and correctly drawn and explained. He certainly understood the decisions of this court upon this subject as we understand them, and as we believe the law to be. If the previous decisions of this court are not plain with reference to the distinction between a principal and an accomplice,- or accessory, we must confess that it is not within the scope of our ability to make it plain. (Scales v. The State, 7 Texas Ct. App., 361; Cook v. The State, 14 Texas Ct. App., 96; O’Neal v. The State, Id., 582; Bean v. The State, 17 Texas Ct. App., 60; Wright v. The State, 18 Texas Ct. App., 358; M. M. Smith v. The State, ante, p. 107; Doss v. The State, ante, p. 505.)

We have carefully considered other questions raised in the record, and we find no error for which the conviction should be disturbed. The judgment is affirmed.

Affirmed.

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Dissenting Opinion

Dissenting Opinion by Hurt, J.

Hurt, Judge.

This is a conviction for theft of hogs. The main question presented in this case, defendant being indicted as a principal, is whether he is or not a principal.

The theory of this prosecution, stating the case most strongly for the State, is that Hose Dickerson, Ose Owens, and defendant, entered in to an agreement, in substance as follows: Owens and Dickerson were to steal hogs generally, bring them to defendant’s house, and that all were to assist in dressing the hogs; that defendant agreed to furnish the salt, pack the meat in his smoke house, and hang and cure the same, and that Owens and Dickerson were to get one-half and defendant the other half of the bacon; that in pursuance of this agreement Owens and Dickerson, on or about the twenty-fifth day of October, 1883, went to the range in which ran the hogs of Long (the prosecutor), and there took the hogs, drove them to the house of the defendant, who lived about four miles from Long’s; that on that night they were slaughtered, all the parties assisting; that defendant was expecting these parties to bring the hogs to his house, and was prepared in all respects to slaughter the hogs, and salt away the meat, and that, on the day of the theft by Owens and Dickerson, the defendant was at home engaged in sawing some timber, and hence was not present at, but was absent, about four miles from the taking.

Was he a principal? This is a subject of the greatest importance, for, if indicted as a principal, the party can not be legally convicted as an accomplice, and vice versa. Hence the supreme necessity of a clear and simple definition of principals and accomplices, and especially of the first. And this necessity is intensified by the fact that the prosecuting officers do not seem to understand that more than one count can be inserted in the indictment. Again, I venture the assertion that under the decisions of this court upon this subject, there is not „a district or county judge in the State who can give in charge to the jury a clear definition of a principal—a charge in which the line is distinctly drawn between principals and accomplices. This subject is left in the utmost confusion, and the writer is as much to blame for this condition of the law upon this subject as any other person.

Who, then, are principals? In M. M. Smith’s case, (ante p. 107), I held that the first article upon this subject, to-wit, Article 74 of the Penal Code, means the absolute perpetrators of the crime. All persons who are guilty of acting together in the commission of an offense are principals. If we are to construe ‘ ‘ acting together ” in its broad and most comprehensive sense, then there is no place for Articles 75, 76, and 78, for, most evidently, the person who is present, knowing the unlawful intent of those actually engaged in the commission of the unlawful act, is acting together with the absolute perpetrator of the crime in one sense, but not in the meaning of Article 74. And so as to the person who, though not present, keeps watch so as to prevent the interruption of those engaged in committing the offense. He, most clearly, is acting together with those who are actually, absolutely, committing the offense. But he is not a principal by virtue, of Article 74. And when we look to Article 76 it will be found that the characters there described are not only acting together with the absolute perpetrators of the crime, in a certain sense, but these acts must be committed at the time the unlawful act is done. Article 78 makes a principal of one who would otherwise be an accomplice but for his presence.

' I desire to notice a certain proposition contained in Bean v. The State, 17 Texas Court of Appeals, 60, and the proposition is this: Where the offense is committed by the perpetration" of different parts which constitute an 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.

This proposition, to me, is in conflict with itself. 3STo offense can be committed by perpetrating its different parts, nor can the parts constitute the whole of the offense until the consummating act is done. A. may engage in making preparations for the commission of an offense; he may advise others to its commission; he may furnish the weapons or the means by which others are to commit the offense; but he has not yet committed the offense, nor any part thereof. Again, this rule is without instruction. It teaches us nothing, unless the acts committed by the party sought to beheld as a principal are stated. For I hold that each and every act constituting the party a principal is named in the statute. If present, to be a principal, the party must be the actual perpetrator of the crime; or, with knowledge of the unlawful act, he must aid by acts or encourage by words or gestures the actual perpetrators of the crime; or, if not present, he must be keeping watch so as to prevent the interruption of those engaged in committing the offense; or, whether presept or not, he must be engaged in procuring aid, arms or means of some kind, to assist in the commission of the offense, and this must be done while others are executing the unlawful act. Or, at the time of the commission of the offense he must endeavor to secure the safety or concealment of the offenders. And here I desire to state with emphasis that I know of no other acts which can be committed, whether before or at the time of the commission of the offense, which, if committed by a party, would make him a principal offender.

But let us return to the above proposition contained in the Bean case. This proposition is hinted at by Mr. Greenleaf in his work on Evidence, Volume 3, section 40. He says: •"‘Thus, if several persons set out in concert, whether together or apart, upon a common design which is unlawful, each taking the part assigned to him, some to commit the act and others to watch at proper distances, to prevent a surprise or to favor the escape of the immediate actors; here, if the act be committed, all are in the eye of the law present and principals; the immediate perpetrators in the first degree, and the others in the second.” In this we find acting together,—acts committed at the same time with the main act, and these acts specifically named. And in this we find acts which make the perpetrator a principal specifically named in Articles 75 and 76 of the Penal Code, the only difference being that we have no degrees in principals.

After a most careful consideration of this subject, I contend that, under our statute, the appellant is not a principal; that, beyond any sort of doubt, the evidence shows him to be an accomplice and a receiver of stolen property, but not a principal in the theft.

Let us consult our code and see who are accomplices. Article 79 provides that “an accomplice is one who is not present at the commission of an offense.” Now, was this appellant present when the hogs were stolen? By no means. He was four miles from the theft. “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; or who promises any reward, favor, or other inducement, or threatens any injury in order to procure the commission of the offense; or who prepares arms or aid of any kind prior to the commission of an offense, for the purpose of assisting the principal in the execution of the same.” Note the last clause. If the arms or aid had been prepared or furnished while others were executing the unlawful act, the person preparing or furnishing the same would have been a principal. This by the way.

Now, let us apply the definition of an accomplice to the facts of this case. Defendant was not present. He was not keeping watch. Nor was he engaged in procuring aid or arms or means of any kind to assist in the commission of the theft, while Owens and Dickerson were executing the unlawful act (the theft). Nor did he endeavor at the time of the commission of the theft, to secure the safety or concealment of Owens or Dickerson; hence, he was not a principal. But the facts show that he did agree jvith, advised, and promised a reward to Owens and Dickerson to procure the theft of Long’s hogs. He is most perfectly covered by the code as an accomplice, and if he had been indicted and convicted as such, no court would be found which, under our statute, would hold the conviction wrong upon this point.

As above stated, this is an important subject, and the rule should be made plain and simple. Suppose the appellant had been indicted as an accomplice, and, upon conviction, had appealed, and had contended before this court, that, if guilty at all, it is as a principal. Now, under the decisions of this court I am afraid that we would have to reverse the judgment. (See M. M. Smith v The State, ante, p. 107.)

I am of the opinion that this conviction is wrong, and that the appellant should have been indicted as an accomplice, or a receiver of stolen property.

Affirmed.

Opinion delivered June 23, 1886.