Williams v. State , 42 Tex. 392 ( 1874 )

Moose, J.

It has been repeatedly held that it is not necessary to allege in the indictment the facts relied upon to show the defendant to be a principal, although the offense with which he is charged may not have been actually committed by him. But if he is a principal offender by reason of the part performed b} him in the commission of the offense, he may be convicted under an indictment charging him directly with its actual commission. If, however, the pleader, instead of proceeding under a general indictment, prefers to do so under a special bill charging each of .the defendants with the particular acts done or part performed by them respectively, should the facts alleged as to some of them be insufficient to show their guilt, the indictment as to them must be held bad.

The indictment against the appellants, Williams, Smith, and Satterfield, is prosecuted upon the supposition that they were present when the mortal blows were given by King and Alexander, aiding by acts, and encouraging by words, in the actual commission of the offense. But the indictment entirely fails to charge them with giving such aid and encouragement, “ knowing the unlawful intent ” of said King and Alexander, which is unquestionably an essential requisite in an indictment attempting, as in this case, to set forth the specific facts relied upon to charge all of the parties as principal offenders. (Paschal, Article 1810.) It may be inferred, it is true, from the general averments of the indictment, that appellants must have been cognizant of the unlawful intent of the parties by whom it is alleged the mortal blows were actually given. But it cannot be admitted that a fact so essential to support the charge against appellants in this form of indictment, should depend upon mere inference and deduction. As the indictment attempts to allege the facts upon which appellants are charged as principal offenders, this one, the very gist of the offense as to them, must be directly and distinctly averred. The motion in arrest of judgment for this defect in the indictment, should have been sustained.

The judgment must also be reversed on another ground.

On the trial of the case, Satterfield, who had been jointly indicted with appellants, but as to whom a nolle prosequi had been entered, was examined as a witness for the State. It is expressly provided in the Code, that a conviction shall not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. (Paschal’s Digest, Article 3118.) The witness, if a participant in the alleged crime for which appellants were on trial, was not an accomplice in the technical sense of the term, but if guilty at all, was guilty as indicted and charged by the State, as a principal and joint offender with the other parties named in the indictment. But surely no such technical interpretation can be given to the Code as to hold, because it is only an' accomplice—a participant in the offense in a more remote degree—whose testimony must be corroborated to warrant a conviction, that it is unnecessary to corroborate the testimony of an accessory or principal offender, who seeks to escape the penalty of the offense by becoming a witness for the State against his confederates. The word accomplice was evidently used in Article 653 of the Code of Criminal Procedure in a different sense, and should receive a much broader interpretation than as defined in Article 219 of the Criminal Code.

The witness, on his examination, denied any complicity in the offense for which appellants were on trial, but he was indicted jointly with them, and the jury might, no doubt, have inferred, under some phases of the case, that lie was in complicity with the other parties charged with the offense, for which the indictment was found. If so, the jury should have been instructed that his testimony would not warrant a conviction unless corroborated by other evidence tending to connect appellants with the offense committed. Ho instruction on this view of the case was asked. But though not asked for, as it was applicable to the case, it was, as'has been often held, imperative upon the court to have given it.

, The judgment is reversed and the cause remanded.

Reversed and remanded.