Middleton v. State , 86 Tex. Crim. 307 ( 1919 )

Appellant's able motion for rehearing urges a number of interesting questions, first among them being the insistence that the charge of the trial court on principals was erroneous, and that we should have so held.

Our Procedure in this State requires, under certain statutory directions, that the charge of the court be excepted to in due time, so that the supposed errors which are pointed out may be corrected, and the cost and delays of appeals be lessened; failure to so except is held to cure all errors in the charge not fundamental. Examining the charge in the instant case and the exceptions reserved thereto, we find that two exceptions were levelled at that portion of the charge now urged as erroneous. Said exceptions are as follows:

1. "The court erred in his charge on the law of principals under the facts in this case wherein it is stated in said charge that defendant was a principal whether bodily present on the ground when the offense was actually committed or not. 2. "Because the court erred in submitting the case to the jury on the charge as written, because there is no evidence justifying the court in submitting the case to the jury on the theory that the defendant was the principal in the commission of the offense."

That part of the court's charge at which said exceptions were directed, is as follows:

"All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true criterion for determining who are principals, is, Did the parties act together in the commission of the offense; was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, providing the offense was actually committed during the existence and in the execution of the common design and intent of all, whether in point of fact all were actually, bodily present on the ground when the offense was actually committed or not."

In order to fully understand the rulings of this Court, and its application of the rule mentioned, to said exceptions, and to further ascertain if the charge given was correct, we quote from that portion of the charge, wherein the law was applied to the facts of the case.

"Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, T.E. Middleton, alias T.E. Lewis, Blackie Lewis, acting with Robert Osment, in the County of Liberty and State of Texas, on or about the time alleged in the indictment, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, and not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, and not under circumstances which would reduce the offense to the grade of manslaughter, with intent to kill, did unlawfully and with malice aforethought by some means unknown to the Grand Jury and thereby did kill said Mrs. Mary Lewis as charged in the indictment, you will find him guilty of murder, as charged, and assess his punishment at death or by confinement in the penitentiary for life, or for any term of years not less than five."

The first of said exceptions is based on the proposition that under the facts it was error to tell the jury that defendant could be found guilty and punished whether bodily present or not; and the second sets forth that there was no evidence supporting the theory that appellant was a principal at all in the case. Neither of these two exceptions is to the form of the court's charge on principals, and substantially both insist that no charge on that theory should be given under the facts. No special charge was asked. The trial court was correctly of opinion that there were facts in evidence calling for a charge on principals; and, inasmuch as one may be a principal under the law when not bodily present, as fully as when present, and the theory of absent principals was supported by evidence, it was the duty of the trial court to submit that theory also. It follows, in our opinion, that neither of said exceptions was well taken, but it is so earnestly insisted by counsel for appellant that the charge defining principals was erroneous, and that this Court has often so held, we have given our careful attention to the charge mentioned, to see if the same be error, and in any wise effective in having visited upon appellant the severe penalty inflicted.

We have found among the decisions of this Court an apparent conflict with regard to said charge. Beginning with the Welsh case, 3 Texas Crim. App., 413, there is an unbroken line of decisions upholding this form of charge. See Scales v. State, 7 Texas Crim. App., 361, opinion of unanimous court, by Judge Clark; Cook v. State, 14 Texas Crim. App., 96; Bean v. State, 17 Texas Crim. App., 60; unanimous opinions by Judge White and Wilson, respectively. These cases are approved by citations continuously, and have never been overruled, as far as we are aware. However, in the Yates case, 42 S.W. Rep., 296, the form of charge given by the trial court in the instant case, was held erroneous, but without discussion or reasoning, the court merely stating that such holding was on authority of the Dawson case, 41 S.W. Rep., 599. The Dawson case is not authority for such holding. Its facts showed a conviction, as a principal, of one whose entire connection with the alleged offense was unquestionably ended before the offense was committed, and who could only have been held as an accomplice. It does not appear in the opinion in the Dawson case what character of charge on principals was given by the court, but this Court, speaking through Judge Henderson, simply held that the facts failing to show appellant guilty under any phase of the law of principals, the trial court should only have submitted the count in the indictment, charging the accused as an accomplice.

A charge somewhat similar to the one under discussion, was held bad in the Wright case, 48 S.W. Rep., 191, upon the cited authority of the Yates and Dawson cases, supra; but this Court affirmed the Wright case because it appeared from the facts therein that the appellant was a principal under the law, and we hold the charge to be harmless error.

In Joy's case, 51 S.W. Rep., 933, this court, again speaking through the same learned judge who rendered the Yates and Dawson opinions, condemned the charge under review, without discussion or analysis thereof, but solely on the authority of the Dawson, Yates, and Wright cases, supra. The Criner case, 53 S.W. Rep., 873, contains a charge somewhat similar to the one under review, but which is manifestly erroneous, and in disposing of the case by reversal, this court says that said charge has been held erroneous, and cites the above cases.

In Steed v. State, 67 S.W. Rep., 328, said charge is held bad, merely citing the authorities we have discussed, and holding in effect that one cannot be a principal unless he is bodily present when the offense is committed. There was no discussion, in the opinion, of the authorities cited.

In McAllister v. State, 76 S.W. Rep., 760, the case is reversed for other errors, but this court condemns without analysis a charge similar to the one under discussion, merely citing the Criner case, supra.

In McDonald v. State, 79 S.W. Rep., 542, the charge under discussion was condemned, citing as authorities the opinions we have above mentioned, without analysis of any of them. This opinion is by the same learned judge who handed down that in the Steed case, supra, and holds that to be a principal one must be actually and bodily present when the offense was committed.

In the Barnett case, 80 S.W. Rep., 1013, the same eminent jurist held this charge erroneous, citing the above cases. The facts as stated showed appellant in that case to be guilty only as an accomplice.

The Armstead case, 87 S.W. Rep., 824, holds the above charge erroneous in a case of circumstantial evidence, in which the evidence tending to connect the accused with the commission of the offense was his possession of recently stolen property. Said case holds, however, that the form of charge given in the instant case would not be reversible error if the proof showed the accused to be a principal under some phase of the law of that issue.

Holmes v. State, 91 S.W. Rep., 588, condemns the charge under discussion without analysis or reasoning, merely referring to some of the cases above mentioned. The charge is held bad because it permits the jury to convict as a principal one who was not present at the commission of the offense, and the opinion states that the facts only showed him guilty as an accomplice. This opinion was also rendered by the same learned judge who spoke for the court in the Steed and McDonald cases, supra.

In Fruger v. State, 99 S.W. Rep., 1014, said charge is condemned without discussion, citing the above authorities; and the case is reversed for this and other reasons. No statement of facts appears.

In the O'Quinn case, 55 Tex.Crim. Rep., 115 S.W. Rep., 39, a case is discussed in which substantially a similar charge was given to the one under discussion, and said charge is condemned, citing the above authorities without analysis of any of them.

In the Davis case, 55 Tex.Crim. Rep., 117 S.W. 159, a case is presented in which the issues making the accused a principal under any phase of the law, were sharply contested and the facts showing the guilty connection of the accused, were occurrences which took place after the commission of the alleged offense. The charge under disussion was condemned, citing some of the above authorities, and without analysis of any of them.

In Clark v. State, 60 Tex.Crim. Rep., 131 S.W. Rep., 556, this charge is condemned, but the court held that if the parties were engaged in a common purpose, one doing one part, and the other doing another part, when the offense was committed, they would be principals, and the error of such charge would not be reversible.

In La Fell v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 884, this charge is condemned on the authority of the cases above discussed, it being held that said charge was erroneous, especially where the defense was alibi and the case one of circumstantial evidence, and the inculpatory facts occurred either before or after the commission of the alleged offense.

In Silva's case, 71 Tex.Crim. Rep., 159 S.W. Rep., 223, this court held erroneous a charge similar to the one under discussion, citing the above authorities again, without analysis of any of them. It is stated that said charge would not be reversible error if the evidence showed without controversy appellant's presence when the offense was committed; by which we take it this court meant to say that if the evidence in a given case shows without controversy that the accused was a pincipal under any phase of the law, this charge would not be reversible error. It is also stated in the opinion that such a charge is reversible in felony cases where the defense is alibi, or the evidence is circumstantial, or only such as shows guilt as an accomplice or accessory.

Reviewing the above decisions carefully, and examining their statements of law and of fact, it is apparent that the Yates case is the original and foundation opinion, upon which is piled up a gradually lengthening line of authorities holding the charge in the instant case erroneous. Not one of the cases cited discusses or analyzes in the opinion, the said authorities. The Yates case is based entirely upon the Dawson case, and it is perfectly apparent from a reading of the Dawson opinion that it is not authority for the holding in the Yates case, and that the superstructure of precedent piled upon precedent must fall with the authority cited as the basis and reason for such holding, unless by some sound reason the charge be now found to be erroneous.

We have much respect for the ancient and honored doctrine ofstare decisis, but as between a line of decisions of this court which we believe announces the law correctly, and another line of decisions which appear to us to arrive at incorrect conclusions, and to be based upon erroneous citations, we believe our duty is plain to announce the error when our attention is called to the same, and to affirm our views of what the law really is. We think the charge in this case correctly states the definition of principals. Article 74 of our Penal Code says that all persons who are guilty of acting together in the commission of an offense, are principal offenders. Following this comprehensive general statement of the underlying principle, which is actingtogether in the commission of the offense, come Aticles 76 to 78, each pointing out specific ways in which the parties may be said to act together. The six specific definitions in these articles, hold that in the following cases the parties are principals:

(1) When A actually commits the offense, but B is present, knowing the unlawful intent, and aids by acts or encourages by words.

(2) When A actually commits the offense, but B keeps watch, so as to prevent the interruption of A.

(3) When A is actually executing the unlawful act, and B engages in procuring aid, arms, or means of any kind, to assist while A executes said unlawful act.

(4) When A actually commits the offense, but B, at the time of such commission, is endeavoring to secure the safety or concealment of A, or of A and B.

(5) When A employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.

(6) When A advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.

Of these six statutory ways in which parties may act together and be principal offenders, it will be seen that two only require the presence of the co-principal with the one actually doing the criminal act, while four make him a principal though physically absent from the scene of the crime; but no confusion will arise if we keep clearly before us the underlying principle that in every case, no matter what phase of the law is involved, the evidence must show, and the charge of the trial court submit, that at the time of the commission of the offense, the partiesmust be acting together, each doing some part in the execution ofthe common purpose. As is well set forth in the Cook case, 14 Texas Crim. App., 96, just here lies the line of cleavage between accomplices and principals; that is, that unless the accused be then actually doing some thing which associates him with the execution of the unlawful act at the very time it is done, he would not be a principal. It would be immaterial which one of the six methods mentioned he pursues, but he must be doing something in some one of the ways enumerated.

Turning to the charge complained of, which we observe has been carefully analyzed by some of the brightest minds that have ever adorned this bench before the holding which we conceive to be erroneous in the Yates case, we see that said charge tells the jury that before they could convict they must believe beyond a reasonable doubt that the accused, Middleton, "acting with Robert Osment . . . in Liberty County, Texas, at the time alleged in the indictment . . . did unlawfully kill Mrs. Mary Lewis, with malice aforethought" before they could find him guilty. Further in his definition of principals, the court says that "all persons who are guilty of acting together in the commission of an offense, are principals." We note that this is exactly what is said by Article 74 of our Penal Code, in its comprehensive definition of principals.

In Cecil's case, 100 S.W. Rep., 390, this court, affirming a seventy-five years sentence for murder, in a case wherein the above was all the law on principals submitted, used this language: "We do not believe that it is essential in defining principals, to do more than was done by the court in this case."

Referring to the charge in the instant case, after the language above set forth, the court continued its definition of principals as follows: "When an offense has been committed by one or more persons, the true criterion for determining who are principals, is, Did the parties act together in the commission of theoffense? Was the act done in pursuance of a common intent, and in pursuance of a previously formed design, in which the minds of all united and concurred? If so, then the law is that all are alike guilty — whether all were bodily present or not when the offense was actually committed."

We affirm that it is necessarily true that in all cases of absent principals, that the thing or things done at the time by the one not present, must result from a common intent or previously formed design, else there could be no acting together; and, likewise, it follows with equal force and certainty that if parties have a common intent or previously formed design to commit an offense and act together in the commission of the same, they are and must be principals; and equally so, whether the particular act of the co-principal bring him under one or the other of the various methods above specified, constituting the different phases of the definition in law of principals.

So holding, we think the Yates case, and each of the other cases holding this charge incorrect, should to that extent be overruled. We are not to be understood as holding incorrect the decisions in all of said cases, because in many of them the facts justified the holding that any charge on the subject of principals was not called for by the facts. We would further conclude that those opinions holding that the giving of said charge would in no case be reversible error where the unquestioned proof showed the presence of the accused at the time of the commission of the offense, announces too restrictive a rule, and that the rule ought to have been stated as being that if the unquestioned proof showed that the accused was a principal under any phase of the statute defining principals, the charge should not be held reversible error. Mere presence of the accused does not make him a principal. Why then hold in a given case that if his presence be proven, an erroneous charge would be harmless? The rule should have been as stated above, and if the uncontradicted facts showed the appellant to be a principal in a given case, the charge should have been held harmless.

From what we have said, it follows that in our opinion, no error was committed by the trial court in giving the charge complained of. Even if we were not correct in holding the form of said charge as given to be a correct announcement of the law of principals, it would still follow that because the uncontradicted testimony showed that at the time of the commission of the offense in the instant case, the appellant was either secreted nearby, viewing the commission of the crime which he had advised, and was, therefore, present and a principal; or else, if absent, he was endeavoring to secure the safety and concealment of Osment, or Osment and himself, by purposely removing and keeping away from the scene of the crime, the daughter of deceased, who, by her presence, would have witnessed or prevented the crime; and this uncontroverted testimony showing him to be a principal, the charge, in any event would be harmless error.

It is also urged that we erred in not holding that the testimony of Mr. Kerr, foreman of the grand jury, was inadmissible, in that portion of the same wherein he testied that the grand jury concluded that Mrs. Lewis had been killed. An examination of the record and bills of exceptions, shows that this witness testified at length to the efforts made by the grand jury to ascertain how the deceased was killed, and if the bill of exceptions be sufficient to call for our consideration, still, the objection was made to all of said testimony of this witness, and as said objection and exception to all of said testimony is contained in one bill of exception, the same was properly overruled. The indictment alleged that the means or instrument used in the commission of the homicide was unknown to the grand jury, and it became material in the trial of the case to show that fact, and all efforts showing the inability of the grand jury to find out how the homicide was committed, and the means or instrument used, was admissible. A general objection to the testimony of a witness, a part of which is material and competent, will not avail in this court.

Finding no error in our former opinion, the motion for rehearing is overuled.

Overruled.