Cohea v. State , 9 Tex. Ct. App. 173 ( 1880 )

Clark, J,

In the course of the charge the court gave this instruction: “5. The defendant is presumed to be innocent till his guilt is established by legal evidence, and all facts and circumstances admitted by the court to go to the jury are deemed legal evidence.”

During the present term this court had occasion to pass upon an instruction of similar import and almost similar phraseology, and condemned it as improper to be given in charge to a jury in the trial of a criminal case. Fury v. The State, 8 Texas Ct. App. 471. A reference to that case for an analysis of the proposition and the reasons underlying the decision is sufficient, without further discussion. As said there with reference to the statute as to the presumption of innocence and the reasonable doubt (Code Cr. Proe., art. 727), “ This law is of long standing upon our statute-book, and contains no surplusage or idle expression. Every word employed is pregnant with meaning, and courts venture upon the hazardous when they attempt any substitution for the language of the law. Its exactness and simplicity are not susceptible of improvement, and any change in its context, either through design or inadvertence, invariably tends to beget perplexity and often constitutes error. This is avoided by a rigid adherence to the language of the law, in giving that law in charge to juries.”

The only other error complained of, and which we deem necessary to notice, arises upon an instruction to the jury, in effect, that if another party perpetrated the theft in Gonzales County, and the appellant, with knowledge of the unlawful intent, aided him in consummating the fraudulent design to deprive the owner of the value of the property and to convert it to his own use, the appellant would be guilty as a principal, whether he acted for pay or otherwise. This charge was excepted to, and a counter-instruction requested, in substance that, before a conviction could be had, the connection of the defendant with the original taking must be established. This instruction was refused.

It is often said that theft is a continuous offence, but cases wherein this doctrine is announced, upon examination, are generally found to be those in which a theft is perpetrated in one county, State, or country, and the stolen property is then carried by him into another. In accordance with established principles at common law, which the statutes of all our States have embodied, it is universally held that the thief may be prosecuted either in the locality of the original caption or in that to which the property has been carried, upon the principle that the legal possession of the true owner continues, notwithstanding the larceny, during each moment of the fraudulent possession of the thief, and the offence is continuous so long as the property is in course of transportation or in the actual possession of the thief. It does not follow, inevitably, that any person who joins in the enterprise, after the original caption is perfected, is necessarily a principal in such original caption. The better doctrine seems to be, that in order to bring the latter within the category of a principal, he must have been concerned in the original theft. The Commonwealth v. Dewitt, 10 Mass. 153. 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, in which his mind united and concurred with that of the actual taker. Welsh v. The State, 3 Texas Ct. App. 413; Scales v. The State, 7 Texas Ct. App. 361.

The other errors assigned are not.likely to arise upon another trial, and for those indicated the judgment is reversed and the cause remanded.

Reversed and remanded.