Pruitt v. State , 91 Tex. Crim. 189 ( 1922 )

Conviction is for robbery by the use of firearms, with punishment assessed at five years confinement in the penitentiary.

On the day of the alleged robbery appellant and one Henry Alford in an automobile drove up to the bank in the town of Nash in Bowie County; the car was stopped just at the edge of the sidewalk immediately in front of the bank. Alford was driving at this time. He went into the bank and held up the cashier with a pistol, securing $299. Appellant remained in the car, stooped over, looking in the bank while Alford was engaged in getting the money. The engine of the car was kept running; as Alford returned to the car appellant moved over to the driver's seat and as soon as Alford entered and before he was seated the car suddenly started and rapidly moved away. After being driven a short distance from the place of the robbery the car was overturned and appellant and Alford from that point proceeded on foot. They were arrested about an hour and a half after the commission of the offense, both of them at the time of the arrest being considerably under the influence of liquor. Two hundred and eighty-nine dollars of the money was recovered from Alford, who also had in his possession some whisky. None of the property was found in appellant's possession.

It appears from the record that Alford had already been tried, convicted and sent to the penitentiary. Upon his trial he interposed a plea of insanity, and introduced evidence supporting that issue, which the jury determined against him. Upon the trial of appellant his attorney offered evidence for the purpose of showing that Alford was insane, upon the theory that if Alford was insane, and being the man who actually committed the robbery, he was not subject to punishment, and therefore, appellant would not be guilty of any offense. The State objected to the evidence upon the ground that it was immaterial in the trial of appellant as to what the condition of Alford's mind was, because appellant would be equally guilty if Alford were crazy as if he were sane, if appellant was present, had knowledge of and participated in the robbery; and upon the further ground that there had been a trial of Alford in which the jury found that he was sane, and he had been convicted and sent to the penitentiary; and further, upon the ground that it was permissible only to prove the condition of appellant's mind and his condition at the time of his participation in the robbery, and the condition of Alford's mind would be immaterial so far as appellant's acts were concerned.

The evidence offered raised the issue as to the sanity of Alford at the time of the commission of the crime. The judgment of conviction against him was not introduced, and his acts incident to the robbery were developed as part of the transaction showing appellant's alleged connection therewith. Appellant's contention is that if the offered evidence had been admitted it would have called for a charge to the effect that if Alford was insane at the time of the alleged robbery he could not be convicted of any offense, and if the jury so found, then appellant should be acquitted. In support of this proposition we are cited to the following cases. In Condron v. State,62 Tex. Crim. 485, and Pizana v. State, 81 Tex.Crim. Rep., 193 S.W. Rep. 671, the defendants were on trial charged with murder. The defense interposed was that others than they had actually committed the killing and in doing so were acting in self-defense, and this being true they could not be guilty of any offense whatever. We find no objection to this principle of law, because if the killing was in self-defense no offense whatever was committed, and an alleged co-principal being present at the time of the homicide could not be guilty unless the party doing the actual killing had committed an offense. In Red v. State, 39 Tex.Crim. Rep., the question under discussion was whether co-principals could be guilty of different degrees of homicide. In Sarli v. State,80 Tex. Crim. 161, 189 S.W. Rep., 149, and Tuttle v. State, 49 S.W. Rep. 82, the defendants were upon trial as accomplices, one to the offense of murder, the other to the offense of swindling. It is apparent that under our statute one charged as an accomplice can not be guilty unless his principal is first shown to be guilty.

We have been unable to make application of the principle contended for by appellant to the facts of the case now under consideration. If Alford was insane and appellant knew this and procured him to commit a robbery, appellant would be guilty as a principal even though absent under Article 77 P.C. If Alford was insane and appellant agreed with him to commit a robbery and was present giving aid in the unlawful enterprise, even though Alford might not be subject to punishment, yet the offense of robbery was none the less committed, and appellant would be guilty and could be convicted therefor, although Alford might not. If appellant agreed with Alford to commit a robbery, believing him sane at the time, and was present at the time the robbery was committed, and aided him in the commission, appellant could be punished therefor, although it afterwards transpired that Alford was insane and not subject to punishment. We believe the court committed no error in excluding the offered testimony.

Many objections are urged to the court's charge on principals only one of which we will discuss. In the general definition of principals the court included one who, not being actually present, kept watch so as to prevent the interruption of one engaged in committing the offense. However, when he applied the law to the facts the jury were told that if Alford committed the robbery, then, among other things which would render appellant guilty would be, that "he was present and kept watch" while Alford committed said offense so as to prevent the interruption of said Alford. If we understand appellant's objection, it is of a two-fold character; one being that the statute (Art. 75 P.C.), defines a principal among others, as one who, not being actually present, keeps watch so as to prevent the interruption of those engaged in committing the offense, and therefore the court was without warrant in telling the jury that if appellant was present and kept watch so as to prevent the interruption of Alford he would be guilty as a principal. Technically considered the objection might at first blush appear to have some merit, but when considered in the light of the facts developed on the trial we do not consider it of such amount as would call for a reversal of the case. If appellant was present at the robbery and was keeping watch in order to prevent the interruption of Alford, there can be no doubt but that to this extent appellant was aiding Alford and we are unable to see how the charge, as framed, could have operated to his injury. The second objection urged is that the court ought not to have embraced in his general definition of a "principal" one who was not actually present at the time of the commission of the offense, but was keeping watch so as to prevent the interruption of its commission. He urges that the facts show appellant was present, and cites many authorities in support of that proposition. We agree with his contention that under the facts appellant was present. The evidence shows that it was only a few feet from where the car was standing at the edge of the sidewalk to the cashier's window in the bank, and that appellant was in plain view thereof from his position in the car. He was present in the sense that he could see what was going on and was near enough to have interposed in behalf of Alford to aid him in carrying out his unlawful purpose if an interruption of any kind had arisen. The sole question then remains: Would the fact that the trial court embraced in the abstract definition of a principal one "who was not actually present but was keeping watch" be such material error as would call for a reversal of the judgment? We are cited to Conn v. State, 11 Texas Crim. App. 396; Bird v. State, 48 Tex.Crim. Rep., and Tittle v. State,35 Tex. Crim. 96, in all of which an error was committed by the court in embracing an abstract definition of a principal not supported by the evidence. None of these cases were reversed because of such error alone. In Burges v. State, 33 Tex. Crim. 9, the court embraced in his charge on principals one who kept watch, when the evidence did not make same applicable, but omitted it in the remainder of the charge. It was held harmless error.

In determining whether the erroneous abstract instruction would necessitate a reversal the whole case must be looked to in order to determine whether the error was of such a character as would have been calculated to mislead the jury. The court at no time after the misstatement complained of in his general definition ever referred to appellant as not being present, but all of his charge thereafter treats him as though present. In what way could the mistake of embracing an "absent principal" in the general definition have influenced the jury to the hurt of appellant? They knew from all the facts before them that appellant was present in the car at the time Alford was perpetrating the act of robbery, and knew from the evidence the conduct of appellant while sitting in the car; watching Alford while in the bank, slipping over to the driver's seat, starting the car suddenly and rapidly upon Alford's return. We have been unable to conceive how this erroneous statement by the trial judge could have in any way worked to the harm of appellant.

The other errors complained of have been examined and we regard them as without merit.

Finding no such error in the record as would call for a reversal of the judgment, the same is affirmed.

Affirmed.

ON REHEARING. March 1, 1922.