Savant v. State , 1976 Tex. Crim. App. LEXIS 1184 ( 1976 )

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of assault with a prohibited weapon (Art. 1151, V.A.P.C., 1925); the punishment is imprisonment for 5 years. The imposition of sentence was suspended and the appellant was granted probation.

The appellant complains of the court’s charge; he asserts that it permitted the jury to convict him on a theory not supported by the evidence. We agree that the court’s charge was erroneous in this respect and under our holdings in Oliver v. State, 160 Tex.Cr.R. 222, 268 S.W.2d 467 (1954), and McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974), the judgment must be reversed.

The indictment charged as follows:

“. . . that BLANCHARD LEE SAVANT and JIMMY LEE BACON on or about the 6th day of October, One Thousand Nine Hundred and Seventy-three, and anterior to the presentment of this indictment in the County of Jefferson and State of Texas, did while then and there unlawfully carrying on and about their person a pistol, with the said pistol, did then and there unlawfully and willfully commit an assault in and upon Robert H. Broussard with said pistol, and did then and there with said pistol so unlawfully carried, shoot the said Robert H. Broussard, . . ”

The appellant was tried separately in this case. The evidence clearly shows that Jimmy Lee Bacon unlawfully carried a pistol and shot Broussard. There is no evidence that the appellant unlawfully carried a pistol or that he shot Broussard. There is evidence that the appellant attacked and struck Broussard with the butt of a shotgun just before Bacon shot Broussard. This evidence would have been sufficient to support a jury finding that the appellant was guilty as a principal, but that is the only theory under which the evidence would permit a jury finding of guilty.

The court charged the jury as follows:

“Now, if you find from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about October 6, 1973, the defendant, Blanchard Lee Savant, did unlawfully and willfully make an assault in and upon Robert H. Brous-sard by shooting him with a pistol, and, if you further find from the evidence beyond a reasonable doubt that said assault, if any there was, was made while the said pistol, if any, was then and there being unlawfully carried by the defendant on or about his person, then you will find the defendant guilty of an assault with a prohibited weapon. If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty of the charge herein.

“Our law provides that all persons are principles if they act together in the commission of an offense. When an offense is actually committed by one or more persons, but others, knowing the unlawful intent, aid by acts or encourage by words those actually engaged in the commission of the offense, such persons so aiding or encouraging are principles, and should be convicted as such. Mere presence alone will not constitute one a principle.

“Now therefore if you believe and find from the evidence beyond a reasonable doubt, that the defendant, either acting alone or together with some other person or persons as a principle, as that term has been defined, committed the offense alleged in the indictment, you will find the defendant guilty. Unless you so find or if you have a reasonable doubt thereof, you will acquit the defendant.”

The appellant made a timely objection pointing out that the charge would permit the defendant’s conviction on a theory not supported by the evidence; that is, that he assaulted Robert H. Broussard with a pistol which he, the appellant, was carrying unlawfully. Cf. Dowden v. State, 537 S.W.2d 5 (footnote 11) (Tex.Cr.App.1976). The attempt to apply the law of principals to the facts was erroneous because it permitted the jury to find the appellant guilty if he alone committed the offense, a theory unsupported by the evidence.

A reading of the opinions in Oliver v. State, supra, and McCuin v. State, supra, as well as an inspection of the records in those cases on file in this Court show them to be indistinguishable from this case.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.