Quillin v. State , 79 Tex. Crim. 497 ( 1916 )

In the original opinion we stated that in oral argument appellant relied upon a certain Michigan case, and that at the time we took no memorandum of it, presuming it would be cited in his brief, "but we failed to find it there."

That was the statement of this writer. Neither of my associates are in any way responsible therefor. I was absent and did not hear the oral argument when the case was submitted. In some unaccountable way I overlooked the citation of the case in appellant's brief.

However, as a matter of fact, it was cited therein in a paragraph to itself with other matter.

When I thus overlooked it, I was anxious to be certain to get the right case and study it, for I understood it was insisted upon as an important case in point in this case. I inquired of others who heard the oral argument to know what case it was. None of them could inform me at the time. Later I was informed it was the Michigan case discussed in the original opinion. However, as I was apprehensive that might not be the case, but it might be some other, I made said statement. Otherwise, if I had been sure I had the right case, I would have made no statement at all on the subject, for, under the circumstances, it would have made no difference whether it was cited in the brief or not.

When, as stated, I in some unaccountable way overlooked it in the brief, I thought appellant's attorneys had not cited it therein, as it is not infrequent that attorneys read to the court in oral argument cases not cited in their briefs. I make this explanation and correction of my mistake in justice to all concerned.

The mistake, however, in no possible way affected appellant or any question in his case. It turned out he got the full benefit and consideration of the case cited by his attorneys.

Appellant contends that the indictment is fatally defective because it did not allege what he said or did which would make him a principal, claiming that it was necessary that this should be done.

This is never necessary. The authorities so holding are many and uniform. We know of no case, and none has been cited, holding, or intimating a holding, to the contrary. Judge White, in his form for an indictment under our statutes of principals, specifically shows that no such allegation is necessary. (White's An. P.C., sec. 85.) Under art. 74, P.C., in sec. 86, he says: "It is not necessary to allege the facts relied upon to show the defendant to be a principal, although the offense may not have been actually committed by him. If he is a principal by reason of the part performed by him in the commission of the offense he may be convicted under an indictment charging him directly with its actual commission"; citing Williams v. State, 42 Tex. 392; Gladden v. State, 2 Texas Crim. App., 508; Davis v. State, 3 Texas Crim. App., 91; Tuller v. State, 8 Texas Crim. App., 501; Mills v. State, 13 Texas Crim. App., 487.

Judge Willson, in his Forms (4th ed.), No. 733, under the articles of our Code (74-8, inc.), on principals, likewise shows that it is wholly unnecessary to allege the facts which make one a principal. His form shows that a party is to be charged directly with the commission of the offense without any allegation of what he did or said to make him a principal. He says: "It is unnecessary to allege the particular facts which constitute each a principal. Under a general indictment charging the defendant, or defendants, directly with the commission of the offense, any acts which make him a principal may be proved": citing some of the cases cited by Judge White and others.

In some recent cases we have had occasion to quote Mr. Branch also on this subject with approval. We again do so. He says: "The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the commission of the offense, although it may not have actually been committed by him. Cruit v. State, 41 Tex. 477 [41 Tex. 477]; Williams v. State, 42 Tex. 392 [42 Tex. 392]; Bell v. State, 1 Texas Crim. App., 598; Davis v. State, 3 Texas Crim. App., 91; Tuller v. State, 8 Texas Crim. App., 501; Mills v. State, 13 Texas Crim. App., 487; Farris v. State, 26 Texas Crim. App., 105, 9 S.W. Rep., 487; Watson v. State, 28 Texas Crim. App., 34, 12 S.W. Rep., 404; Finney v. State, 29 Texas Crim. App., 184, 15 S.W. Rep., 175; Gallagher v. State, 34 Tex.Crim. Rep., 30 S.W. Rep., 557; Campbell v. State, 63 Tex.Crim. Rep., 141 S.W. Rep., 232; Oliver v. State, 144 S.W. Rep., 604; Madrid et al. v. State, 71 Tex.Crim. Rep., 161 S.W. Rep., 93; Dillard v. State, 77 Tex.Crim. Rep., 177 S.W. Rep., 99." (1 Branch's An. P.C., sec. 676.) Arensman v. State, 79 Tex.Crim. Rep., 187 S.W. Rep., 471, and other cases recently decided but not yet reported. Exactly to the same effect is 1 Vernon's Cr. Stat., sec. 23, p. 42.

Each of the cases cited by Judges White and Willson and Mr. Branch are directly in point. We will quote from but two of them.

Before this court was created, and when the Supreme Court had criminal jurisdiction, Cruit and King were jointly indicted for stealing two bales of cotton with the intent to appropriate them to their use and benefit. Cruit alone was tried. The court instructed the jury, if King stole the cotton with the intent to appropriate it to his and Cruit's use, and Cruit was present when the cotton was stolen, and, knowing the unlawful intent of King, did aid by acts in taking, etc., the cotton, to convict him. The jury did convict him.

The court said: "It is admitted that all who are present at the commission of a crime and give aid are principals. But it is insisted, in an ingenious argument, that the indictment does not warrant a verdict against appellant on the proof of the facts indicated in the charge to which we have referred. If the indictment had charged King with stealing the cotton, and that appellant, knowing the unlawful intent, was present, aiding and assisting him therein, it is conceded the charge of the court would have been strictly correct. But it is said appellant is charged with stealing the cotton, and not with aiding King to steal it, and, to convict him under this charge, the proof must show that he took the cotton with intent of converting it to his own use. With, however, much force we may concede the objection has been urged, we regard it as more specious than sound. The indictment does not, as it seems to be supposed, charge the taking to have been with the intent to appropriate the cotton to the use of King alone, but to the joint use of appellant and King. And if the objection should be sustained, it would result that, in all cases where there are two or more principal offenders, it would be necessary to set forth in the indictment the particular acts done by each of the parties connected with the transaction. This certainly has never been the practice in prosecutions of this character, and has always been held to be unnecessary." (Cruit v. State, 41 Tex. 477.)

In Mills v. State, 13 Texas Crim. App., 487, Mills was indicted separately for shooting Berry. Dart was in no way mentioned in the indictment. This court said:

"Upon the trial the defendant excepted to all evidence tending to prove that Dart shot Berry, upon the ground that there was no allegation in the indictment to that effect. The court overruled the objection and the defendant excepted. We are of the opinion that the ruling of the court was correct. The State proved that Dart did the shooting, and that defendant was present, and knowing the unlawful intent of Dart, abetted and encouraged him in the commission of the offense.

"The question here raised is this: Must the indictment charge all of the parties engaged in the commission of the offense, in order to the admission of evidence to prove that a party not on trial committed the act, and that the defendant (the party on trial) was present, and knowing the unlawful intent of such person, aided him by acts or encouraged him by words or gestures? We are of the opinion that this question must be answered in the negative. If the party is present and knows of the unlawful intent, aids by acts or encourages by words or gestures the party who actually commits the unlawful act, he is held a principal actor, and can be prosecuted and convicted as such. In this case defendant told Dart to shoot; that he would stand by him. Dart shot. Dart's act was the act of defendant to the same extent and to all purposes in law as if defendant had actually shot Berry himself; and it is proper for the indictment to charge him with the actual shooting of Berry, omitting any or all others engaged in the commission of the act."

If the offense in this instance had been murder, arson, rape, or any other felony, it would have been wholly unnecessary to have made any allegation at all about Druesdow. Quillin could have been charged directly with having committed the offense, although Druesdow himself committed it, and Quillin was merely a principal by reason of what he did or said. It was only because under this particular law Druesdow was in a class who alone could directly commit such a crime, that it was necessary to allege what he did at all. Then after making the necessary allegations which the indictment did as to Druesdow, it was only necessary as to Quillin to allege as it did, that he did unlawfully, wilfully and fraudulently act together with Druesdow in the commission of the said offense — this is the very language of the statute. No other allegation whatever as to what Quillin said or did was necessary.

All other questions were discussed and correctly decided in the original opinion. No further discussion of any of them is necessary.

The motion is overruled.

Overruled.