Kingsbury v. State , 37 Tex. Crim. 259 ( 1897 )

Appellant was convicted of being an accessory to the commission by others of the offense of theft of property over the value of $50, and given two years in the penitentiary; hence this appeal. The indictment in this case alleges that Pete Wells, M.L. Mayes, alias Dock Mayes, and Loy McLennon did steal one buggy, of the value of $100, two sets of harness, of the value of $20 each, and one pair of shafts, of the value of $5, the same being the property of A.A. Temple, and then proceeds to charge that the appellant, M.C. Kingsbury, after the commission of the said theft by the parties above named, did unlawfully and willfully conceal and give aid to the said Pete Wells, M.L. Mayes, alias Dock Mayes, and Loy McLennan, in order that they might evade arrest for said offense, against the peace and dignity of the State. A motion to quash the indictment is made upon the ground that the grand jury did not receive testimony in regard to the bill, but acted on the advice of the County Attorney, Mr. Taylor. This motion does not allege that Mr. Taylor was present when the grand jury was deliberating upon the accusation against the defendant or voting upon the same. This court has held that the indictment will not be quashed or set aside because the grand jury had no evidence before them authorizing the presentation of the bill, and that this matter of evidence vel non will not be inquired into. An indictment, however, will be set aside if some person was present not authorized so to be when the grand jury were deliberating or voting upon the bill. As above stated, this is not alleged in the motion to quash. The motion was properly overruled. To sustain this conviction, appellant being charged as an accessory, it was necessary to establish the fact that some of the parties named as the principals to the theft were guilty, and, under our statute, were guilty of the theft of the property, or some of the property, described in the indictment. It appears from the record that Pete Wells had been tried upon an indictment charging him with the theft of the articles mentioned in this indictment, and the jury returned a verdict of guilty, but that the judgment upon said verdict was for burglary and not theft. A motion was made (Wells being properly notified thereof) to correct the judgment so as to correspond with the allegations in the indictment and the verdict of the jury. This was done, and a formal judgment entered declaring Wells guilty of the theft of the property described in this indictment. In this there was no error. See, Morris v. State, 30 Tex.Crim. App., 96. Upon the trial the record in the case against Pete Wells was introduced in evidence. It appears from the record that sentence had never been pronounced against Wells for the theft of the articles charged in this indictment, or in the indictment upon which he was tried. Our statute provides that "the accessory may in like manner be tried and punished before the principal when the latter has escaped; but if the principal is arrested, he shall be first tried, and if acquitted the accessory shall be discharged." Penal Code, 1895, Art. 90. The meaning of this article is evident — that if a principal is under arrest, and has not escaped, he must be tried and convicted for the offense of which the prisoner is charged of being an accessory. The question before us is whether or not Wells has ever been convicted, within the meaning of our statute upon this subject. It is true there was a verdict of the jury and a judgment thereon. Is this a conviction within the meaning of the laws of this State? At common law an accessory could not be tried until after the conviction of the principal, and while it was true that they could both be placed upon trial at the same time, yet the jury were re-required to convict the principal before they could convict the accessory. Divers statutes have been passed by parliament upon this subject, and the rule has been amended and modified to a very great extent in England; but in this State no act of parliament is law unless adopted by the legislature of our State. Let the common law be as it may, our legislature having spoken upon the subject, we must be governed by their acts. In Texas, if the principal be under arrest, no accessory (we do not mean an accomplice) can be tried until the principal has been tried and convicted. Hence the question, what is a conviction? This question of conviction has come before our court in several different aspects, under statutes in which the word "conviction" or "convict" has been construed. Code Crim. Proc., Art. 768, subdiv. 3, provides that "all persons who have been or may be con-convicted of felony in this State, unless such conviction has been legally set aside, or unless the convict has been pardoned for the crime of which he was convicted, can not be a witness." It has been held in a number of decisions that said statute, as construed, authorized all persons to be witnesses until final sentence had been passed upon them; that is, that, notwithstanding a verdict of guilty by a jury and a judgment thereon, such a person was not under conviction, so as to render him incompetent to testify. See, Arcia v. State, 26 Tex.Crim. App., 193; Woods v. State, 26 Tex.Crim. App., 490. The word "convicted" has also been construed under our statutes with reference to elections. The statute provides that persons shall be authorized to vote unless convicted of felony. The term "convicted" here has been construed to mean "that a judgment of final condemnation has been pronounced against the accused." See, Gallagher v. State, 10 Tex.Crim. App., 469. And it has been held in a number of cases that the sentence was the final judgment in every felony case, and, unless there was such final judgment, that this court would not entertain an appeal. See, Code Crim. Proc., Art. 834, note 1, and authorities there cited. At common law it was held, prior to the enactment of the statute of Anne, when the law required the principal to be convicted before the accessory could be tried that there must be a final judgment or sentence of conviction of the principal before the accessory could be brought to trial. Mr. Bishop says: "So completely at common law is the accessory attached to his principal that if sentence is not passed on the latter's conviction (creating in the English law his attainder), no judgment can be pronounced against the accessory." See, 1 Bishop's Crim. Law, § 668. And it has been held that, in case of the death of the principal, the accessory could not be tried; and, under our statute, such has been the rule in our State. See, State v. McDaniel, 41 Tex. 229. So, it has been held that the reversal of a judgment against the principal will operate a discharge of the accessory. Marshes' case, 1 Leon., 325. And, further to enforce this construction or view, it has been held that the pardon of the principal will not have the effect to release the accessory; the very fact that the pardon is extended conveying the idea of a final conviction of the offense. Mr. Wharton, in speaking of this subject, says: "A prisoner does not waive his right to call for the record of such conviction by pleading. The conviction of the principal is not admissible evidence until judgment has been rendered on the verdict, and when the trials are concurrent there can be no judgment against the accessory until there is a sentence of the principal." See, 1 Whart. Crim. Law, § 237. Let us suppose that, when Pete Wells is brought before the court for sentence, and called upon to know whether he has anything to say why sentence should not be pronounced against him, he should make suggestions to the court which would justify the court in setting aside the verdict and judgment, and that the same was set aside; we would have this situation: a verdict and judgment set aside, and practically a new trial granted the principal, after the conviction of the accessory. Or suppose, as he would have a right to do, he should appeal to this court, and the judgment of the lower court be reversed; we would have practically a new trial granted the principal, with a final conviction of the accessory — that is, notwithstanding the statute requires the conviction of the principal first, we might have a case in which the accessory was finally convicted, and the principal might never be convicted. In our opinion, the statute was intended to prevent just this condition of things; that is, the final conviction of the principal before the accessory should be brought to trial. Because the record contains no final conviction of the principal, Pete Wells, or either one of said principals, of the offense to which the appellant is alleged to have been an accessory, the judgment is reversed, and the cause remanded.

Reversed and Remanded.