Dill v. State , 35 Tex. Crim. 240 ( 1895 )

The indictment in this case contains two counts; the first for burglary, tile second for conspiracy to Commit the same burglary. Appellant was convicted for the conspiracy. After the State had closed its evidence, counsel for appellant moved the court to compel the District Attorney to elect upon which count the State would prosecute. This motion was denied, and appellant excepted, reserving a bill. The evidence disclosed that the conspiracy or agreement was to commit the burglary charged in the first count. Now, while it is true that the offense called "conspiracy" was complete when the positive agreement was made between appellant and W.D. Dill to commit the burglary, and it is also true that the burglary and the conspiracy to commit the same are distinct offenses, still they may constitute but one criminal transaction. Our statute (Article 433, Code Crim. Proc.), provides that an indictment or information may contain as many counts charging the same offense as the attorney who prepares it may think necessary to insert. If the statute means when it says "the same offense" that the offenses must be technically the same, then theft and swindling cannot be inserted in the same indictment, in separate counts, nor can theft and receiving the stolen property, nor rape and incest, because, technically, they are separate and distinct offenses. We understand the meaning of the word "offense," as used in this statute, to be the same criminal transaction. This being so, the rule is that counts may be joined in the same indictment to meet the various aspects in which the evidence may present itself. And if it appears, after the case of the State is presented on the trial of the prisoner, that there is no more than one criminal transaction involved, the court will not restrict the prosecution to particular counts. People v. Austin, 1 Parker, Crim. Rep., 154. Of course, the rule that the court shall give in charge to the jury the law applicable to the case would restrict, the court, (if there was no evidence tending to support a count or counts to that count or counts which have support in the evidence. There was an examination into this criminal transaction before a Justice of the Peace. The appellant was asked if he desired to make a statement. He answered that he did not. After the testimony for the State was in, the justice asked the appellant if he wished to take the stand in his own behalf. He said he did. He was then sworn, and testified in the case. Over the appellant's objection, the State proved by the justice and others the Statements made in his evidence before the examining court. The objections urged to the admission in evidence of the testimony given by appellant before the justice were: "First, because the appellant was in custody, and was not cautioned; second, because his statements were not voluntary, he not being told that he could testify if he wished, but that he did not have to testify unless he desired to do so." To the first objection, if the accused voluntarily testifies for himself, his statements are admissible against him on a subsequent trial, whether he was or was not in arrest or cautioned. If, however, he did not make a statement, or testify voluntarily, neither the statement nor the testimony is evidence against him. We are not aware of any rule requiring the magistrate or the court to inform the prisoner that he could testify if he wished, but that he did not have to testify unless he desired to do so. As to whether appellant became a witness voluntarily, or did so because the magistrate told him to do so, there is some conflict in the testimony. The court, however, submitted this matter to the jury, telling, them, in effect, not to use as evidence against the prisoner his testimony given before the magistrate, unless they believed that he voluntarily became a witness for himself. Counsel for appellant, requested the court to give to the jury this charge: "If you believe from the evidence that the defendant, Steve Dill, agreed and conspired with W.D. Dill to burglarize the store of R.J. Waters, but before the defendant or W.D. Dill did any act to carry out said agreement, Steve Dill revoked and abandoned his part of the agreement, and told said W.D. Dill that he (Steve Dill) would have nothing to do with said contemplated burglary, then the defendant, in that case, would not be guilty." If this instruction was intended to be applied to the burglary, then the refusal worked no injury to appellant, because he was acquitted of that offense. If it had reference to the conspiracy, then it did not contain the law, because, when the appellant and W.D. Dill entered into a positive agreement to commit the burglary, the offense — namely, conspiracy — was complete, and a withdrawal therefrom is no atonement for the offense consummated. The judgment is affirmed.

Affirmed.