Armstrong v. State , 28 Tex. Ct. App. 526 ( 1890 )

Hurt, Judge.

Andrew Armstrong and G. T. Armstrong, the appellant, were indicted for the theft of certain bois d’arc blocks—Andrew as principal, and appellant as accomplice. Appellant was tried, and being convicted, appeals.

There is no proof that Andrew Armstrong stole the blocks, and hence this conviction of G. T. Armstrong is wrong. If Andrew Armstrong was not guilty of fraudulently taking the property, and G. T. Armstrong, knowing that he had no right to the property, did fraudulently advise, command, or encourage Andrew Armstrong to take the same, he would be a principal and not an accomplice. If there be doubt as to whether Andrew Armstrong was guilty, then the pleader should charge G. T. Armstrong as principal and as an accomplice; and, if the proof fails to establish Andrew Armstrong’s guilt, but shows that G. T. Armstrong did, with a view of stealing the property, advise, command, or encourage Andrew Armstrong to take the blocks, he would be guilty as principal. On the other hand, if the proof shows Andrew Armstrong’s guilt and that G. T. Armstrong fraudulently did advise, etc., Andrew Armstrong to take the blocks, then he would be guilty as an accomplice. And just here we would state, and emphasize the statement, that the State can not he compelled to elect upon which count it will prosecute if there be proof tending to support both counts. Of course if the evidence fails to support one count, or renders one count more certain than the other, the prosecuting officer will suggest to the jury the count relied on for conviction; or, the court may direct an acquital on one count and instruct the jury on the other.

Because there is not sufficient evidence to establish the guilt of Andrew Armstrong as principal, the judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.