Hext v. State , 104 Tex. Crim. 46 ( 1926 )

The offense is murder and the punishment is twenty-five years in the penitentiary.

This is the second appeal of this case. Disposition of the first appeal will be found in 271 S.W., p. 81, where a sufficient statement of the facts is recorded.

Appellant complains at the court's action in refusing to give the statutory definition of an accomplice and to affirmatively instruct the jury that if defendant was only an accomplice he could not be convicted under the indictment in this case. The charge of the court failed utterly to submit this issue to the jury and defendant excepted to the court's failure to do so and such failure was manifestly error. Bean v. State, 17 Texas Crim. App., 60; Phillips v. State, 67 S.W. 328; McAllister v. State, 76 S.W. 760; Davis v. State, 117 S.W. 159; Jones v. State, 122. S.W., 31; Menefee v. State, 149 S.W. 138. From these cases the following rule is easily and clearly deducible, to wit:

"If an appellant furnishes the means by which a homicide is committed by others but is absent at the time of its commission and is not then doing something in furtherance of the common design under the law of principals, so as to make him constructively present, then appellant cannot be convicted as a principal under our statute and under an indictment charging him as a principal with the commission of the offense. In this connection, we think it clear that in addition to the foregoing charge, the jury under the peculiar facts of this case should have been instructed clearly and pertinently that if another or others committed this offense without the guilty participation of the appellant, then he would not be guilty. Dubose v. State, 10 Texas Crim. App., 230; Kirby v. State, 93 S.W. 1030; Wheeler v. State, 121 S.W. 166; Ward v. State, 158 S.W. 1126.

Appellant also complains at the court's action in permitting the witness Jones to testify in effect that the appellant told him while appellant was in jail and in the custody of Jones, the sheriff of Dickens County, that he had not purchased any strychnine on or about the 29th day of March, 1924, nor at any other time. On a former appeal of this case, the present Presiding Judge of this Court held that this testimony was not admissible. It is clear and certain that the appellant was under arrest and in the custody of the very witness who gave this testimony at the time the statement is alleged to have been made, and under the statute and authorities in this State, the testimony should have been excluded. Art. 810, Vernon's C. C. P. Reynolds v. State, 199 S.W. 636; Clark v. State,207 S.W. 98; Brown v. State, 213 S.W. 658; Dover v. State,197 S.W. 191. As above stated, this identical question was passed on by this court on a former appeal of this case and it is to be presumed that the trial court recognizes the rule that the holding on a former appeal is the law of the instant case and on another trial will not overlook the necessity of excluding this testimony.

As the evidence in this case may be different on another trial, we do not deem it necessary or proper to discuss its sufficiency in the instant case.

For the errors discussed, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.