Mahaney v. State , 48 Tex. Crim. 348 ( 1905 )

Appellant was convicted of an aggravated assault, and his punishment fixed at a fine of $25. The indictment charges that appellant and others "did then and there unlawfully commit an aggravated assault in and upon C.R. Houghton with premeditated design and by the use of means calculated to inflict great bodily injury upon the said C.R. Houghton to wit: by the use of their fists, and they did then and there by the means aforesaid strike, wound and bruise the said C.R. Houghton," etc. The evidence before us shows that one Bolivar Brown, sought out the prosecuting witness Houghton and viciously assaulted him and violently beat him. There is some evidence in the record to show that appellant contributed something towards paying the contemplated fine of the codefendant Brown, provided he would whip said Houghton. But the evidence does not show that said Brown ever acquiesced or had cognizance of any agreement to pay the said fine or effort on the part of appellant to pay or get up money to pay it. There must be some complicity of the accomplice, or some guilty acting together with the principal, before appellant can be found guilty. The mere fact that he paid or offered to pay money, provided Brown would whip prosecuting witness, would not per se authorize his conviction of an aggravated assault. The evidence is not of that conclusive character authorizing this court to affirm the verdict. If the defendant offered Brown money to assault prosecuting witness, or induced him by any other means to do so, he could be properly prosecuted; but bare desire or inclination to pay the fine, or a bare offer disassociated from the principal and unknown to him, would not authorize the conviction of the defendant in this case. The evidence being insufficient to support the conviction, the judgment is reversed and the cause remanded.

Reversed and remanded.