Smith v. State , 89 Tex. Crim. 319 ( 1921 )

It was the theory of both the State and the appellant that the actual actor in committing the offense of burglary was one Pitts; and the State's testimony tended to show that Pitts put the stolen property into the automobile under the control of the appellant. At this point the theories diverge, that of the State being that appellant was cognizant of the purpose of Pitts and was acting with him in the commission of the offense, though not actually present at the immediate place where it was committed. The appellant's theory was the converse of this; that he was without knowledge of the intention of Pitts to commit the offense; that his presence in the vicinity had no connection with Pitts' conduct but that he had stopped his car for an innocent purpose; that the stolen property was placed therein by Pitts without the knowledge of the appellant, without his knowledge of the theft; and it was in accord with this theory that appellant explained his possession of the stolen property, that is, that the stolen property was found in his car where Pitts, without his knowledge, had placed it. It being conceded upon both of these theories that the appellant received the property from Pitts that fact alone did not inculpate him, but his guilt depended upon whether he was a principal actor with Pitts at the time the burglary was committed. To bring him within the statute defining principals, it was not essential that the proof show that he was present at the immediate time and place of the commission of the offense. If, knowing of the unlawful act, he was keeping watch to prevent interruption, or if he was endeavoring to secure the safety of Pitts while the unlawful act was being committed, he was a principal. Middleton v. State, 86 Tex.Crim. Rep.; Smith v. State, 21 Texas Crim. App., 107; Simpson v. State, 81 Tex. Crim. 389; Burrow v. State, 85 Tex.Crim. Rep..

The part of the main charge which is criticized was, we think, an appropriate presentation to the jury of the law covering the conflicting theories. Stephens v. State, 69 Tex. Crim. 437, 154 S.W. Rep., 996.

The special charge requested on the law of principals, as pointed out in the original opinion, was so framed as to make appellant's presence essential; and the special charge on the explanation of the possession of property recently stolen was, as applied to the facts in the case, incomplete and inaccurate in that it required an acquittal if appellant's account of his possession was true and consistent with his innocence, ignoring the fact that reliance was not had upon possession alone to connect appellant with the offense, but that reliance was had upon the evidence tending to show appellant's guilty connection with the commission of the offense at the time, that is, that he acted with Pitts in such a manner as to make him a principal offender. The special charge which was requested has been used in cases in which the State seeks to have drawn the inference of guilty connection with the offense from the possession by the accused of the fruits of the crime, but it is not sufficient in all cases, and the one before us is an example. The charge given, which is in accord with that as proved in Stephens v. State,69 Tex. Crim. 437, 154 S.W. Rep., 996, and other cases cited in the original opinion, was well adapted to fairly and accurately present to the jury for its solution the law applicable to the controverted issues controlling the case.

Appellant's motion for rehearing presents no new questions but reiterates those originally made. We might well have been content with the review of the subject contained in the original opinion. Appellant's earnest contention that we were wrong has impelled us to look again into the questions, and on an examination of them, we are constrained to adhere to the conclusion heretofore declared.

The motion is overruled.

Overruled.