Eron Harris v. State , 131 Tex. Crim. 223 ( 1936 )

If we understand the gist of appellant's renewed complaint, it is that the court should have amplified his charge on principals, and in substance have told the jury that the acting together of Burleson and appellant must have been the result of a conspiracy — that is, the result of a previously formed design to kill Gann. The State's evidence, if believed, showed that Burleson and appellant were acting together. Appellant was present; struck Gann, and told Burleson to shoot Gann, which Burleson immediately did. The facts make pertinent the charge given by the court. The statement of Judge White in Cox v. State, 8 Tex. App., 254, becomes appropriate. After quoting the articles of the Penal Code relating to principals, Judge White said:

"To our minds, a great deal of the trouble, confusion, and discussion with regard to conspiracy, where two or more are charged with the commission of crime, might and can be obviated by keeping in mind these statutory provisions. If the parties can be identified at the time and place as joint participants in the commission of the crime, why the necessity of going behind that fact to establish a conspiracy to do the act already accomplished, and for which the law denounces them as principal offenders, and liable to punishment as such? Why want a better predicate, or any further evidence even of a conspiracy, if their presence and guilty participation is already established? To us it seems too plain to admit of argument, that, when two or more are found acting together with an unlawful intent in the commission of an offense, the common design and acting together makes them ipso facto conspirators, — endows them as a body with the attribute of individuality, — merges the conspiracy to do the act in the act itself; and that the previous acts and declarations of each or any such principal offenders in pursuance of the agreed plan, and tending to throw light upon it or the motive or intent with which it was committed, is and should be received as legal and admissible evidence against each and all, whether indicted, prosecuted, and tried jointly or separately."

See, also, Miller v. State, 112 Tex.Crim. Rep.,15 S.W.2d 1043; Thompson v. State, 116 Tex.Crim. Rep.,33 S.W.2d 1067; Jennings v. State, 121 Tex. Crim. 384,51 S.W.2d 341. Under the facts in evidence the trial court appears to have had a comprehensive view of the case, and submitted the issues both for the State and for appellant in a fair manner. To the instructions given no just ground of complaint appears tenable.

We have read with interest appellant's motion for rehearing, and have re-examined the charge of the court and the evidence found in the record, but believing the case to have been properly disposed of originally, the motion for rehearing will be overruled, and it is so ordered.

Overruled.