Long v. State , 23 Tex. Ct. App. 692 ( 1887 )

Hukt, Judge.

Appellant has been convicted of the theft of sheep and goats. The theory upon which the prosecution rested was that appellant was guilty by reason of a conspiracy entered into by and between himself, Nickenor Rodriguez and Nicholas Garcia, and that the theft was committed through the manual agency of these two co-conspirators and another Mexican, whom these latter had employed. It was not claimed that appellant was actually present and participating.

Certain statements and declarations of these two associates were admitted in evidence. These tending to implicate the defendant, and not being made in the presence of appellant, it became necessary to show af conspiracy as a predicate for their introduction.

The evidence on this head tended to show that, for some days previous to the taking, Rodriguez and appellant were seen frequently conversing together, apart from others; the loaning of his pistol by appellant; the intercession with the Mexican’s employer to get for him a leave of absence to visit a sick brother; the fact that he did not make his visit; his riding about the country, and his frequent returns to appellant between the time of his release and the bringing in of the stolen property; the killing of the Mexican herder; the fact that one of the conspirators was seen riding one of appellant’s horses shortly before the taking; the arranging for the shipment by rail of two cars of sheep, etc. The facts alluded to, as well as others in the record brought up, must be held to establish the conspiracy to commit the theft, and also appellant’s participation therein.

The State’s theory was that the property was intended to be shipped. This not having yet been done, the statements and declarations of his co-conspirators were admissible, since the purpose of the conspiracy was still incomplete.

The question raised on the fifth assignment of error does not arise on the record, and is not here discussed. The doctrine of the Nolen and the Wood cases (9 Texas Ct. App.) are not in point, and do not support appellant’s sixth assignment of error.

The writer of this opinion does not, under the facts, hold the ippellant to be a principal. His views upon this question were expressed at some length in the Smith case (21 Texas Ct. App., 106), and he does not feel called upon to renew the discussion here. Former rulings of this court hold him to be a principal, and this opinion so holds him.

Opinion delivered June 24, 1887.

Other assignments of error have received careful consideration and are not deemed well taken. The judgment is affirmed.

Affirmed.