Carlisle v. State , 31 Tex. Crim. 537 ( 1893 )

In 1880, in Lee County, Texas, one Samuel Sparks was murdered in the town of Giddings, at night. J.M. Brown was sheriff of said county. In 1887 or 1888, Brown having moved to Fort Worth, indictments were presented against Ed Myers and J.T. Carlisle for the murder of Sparks. At the time of the killing Ed Myers was deputy sheriff for Brown. In the fall of 1888 Myers was tried, found guilty of murder in the second degree, and sentenced to twenty years in the penitentiary. On the trial of Myers, W.T. Sharman, the only eye-witness to the killing, testified, that he "was an eye-witness to the homicide of Sparks; that he was standing within a few feet of Sparks when he was killed; that Carlisle and Sparks were walking arm in arm toward Sparks' horse, which was hitched near by, and that Myers slipped lip behind them, and the night being dark, he stooped to get Sparks' head above the horizon, and fired a pistol directly at Sparks' head, the ball entering the base of the brain, and ranging upward and forward; that Sparks fell dead, whereupon Carlisle and Myers ran away; that he recognized Carlisle by his voice." There was deadly enmity existing between J.M. Brown and Sparks.

In the city of Denison, Grayson County, between the hours of 1 and 2 o'clock a. m. on the night of the 28th of April, 1892, while lying in bed with his wife and infant child, W.T. Sharman was shot with a shot gun by some person standing upon a ladder placed against the house, shooting over the top of the window sash, which had been lowered about six inches. Charles Luttrell was indicted as principal, tried, and convicted of murder of the first degree, with the death penalty; appealed to this court, and the judgment was affirmed.

On May 25, 1892, John T. Carlisle was indicted, being charged as an accomplice also, for the murder of W.T. Sharman; was on the 28th of October, 1892, tried and convicted of murder in the first degree, with the death penalty assessed against him also. From this conviction and judgment he appeals.

The acts constituting appellant an accomplice occurring in Collin County, counsel for appellant contends that Grayson County, the county of the homicide, was without authority to try the case, If an accomplice to a felony be guilty of a distinct offense from the felony committed by his principal, the position of counsel is well taken.

We have no definition of a crime named or called "accomplice," but. we are informed by our code what acts and things will make a person doing them an accomplice to all felonies to which there can be an accomplice. We are aware that there are numerous opinions of learned courts strongly intimating that an accessory before the fact (our accomplice) is guilty of a distinct offense from that of his principal. We desire to notice the reason or legal ratiocination of these opinions.

The following proposition is supported by a strong line of authorities: Accessory before the fact in one State to crime committed in another can not be punished in the State where the substantive crime is committed. The reasoning by which this proposition is sustained is, that as the acts constituting a person an accessory occurred in a State other than that in which the principal committed the crime, the State of the substantive crime can not punish those acts or the perpetrators, because done beyond the jurisdiction of the State in which the crime is committed by the principal.

Let us examine this subject, in the light of the same authorities which support the above proposition, a little further. A lives in Texas. He procures B, who also lives in Texas, to go to Missouri and there commit an act which is a felony in Missouri. B is innocent of anything wrong in what he does. These same authorities hold that Missouri would have authority to try and punish A. Upon what ground? Because A would be the principal. Again, A employs B to go to Missouri, and there commit a misdemeanor. B, with full knowledge of the criminal intent of A, would be guilty as a principal, and, as it was a misdemeanor, all would be principals, and Missouri would have authority to punish A, when in fact A had done no act whatever in Missouri, except through B. Again, A sends B to Missouri, armed and equipped for the purpose of murdering C, being instigated thereto by A. Missouri would not have authority to try and punish A, because all his acts were done in Texas, and because he was accessory and not principal. Now for the dilemma. Suppose Missouri should by statute make accessories before the fact principals, as several States have done, then she would have authority to try and punish A for the murder of C, when A had done no act in Missouri personally, acting alone through his guilty agent, B. What is the result of such doctrine? It is that the power or authority to punish acts committed beyond the border of the State, which are crimes within the State, depends upon technical distinctions between felonies and misdemeanors, accessories and principals, or whether the agent was guilty or innocent, and not upon the fact that the criminal act was or was not committed in the State.

There is another line of authorities resting upon solid foundation. The doctrine is this: That distinctions between accessories and principals rest solely in authority, being without foundation either in natural reason or the ordinary doctrine of law; for the general rule of law is, that what one does through another's agency is to be regarded as done by himself. In this State there is no distinction between the punishment of an accomplice and a principal, Why? Because the crime is the same. In morals there are circumstances in which we attach more blame to the accomplice than to his principal; as when a husband commands his wife, or master his servant, to do for his benefit a criminal thing, which in his absence is done reluctantly, through fear or affection overpowering a subject mind. That the crime committed by the accomplice is the same as committed by his principal is evident. This proposition rests upon solid legal ground. In 1 Broom's Legal Maxims (second edition), 643, we find this maxim; "The principle of common law, 'qui facit per alium, facit per se,' is of universal application in both criminal and civil cases." If appellant be guilty, of what offense is he guilty? He is guilty of murder of the first degree. Why is he guilty of murder of the first degree? Simply because he, with his malice aforethought, expressed through his agent and tool, Luttrell, killed W.T. Sharman. He is guilty because Luttrell's act, was his act, Luttrell being his agent Appellant is guilty of the murder of Sharman in Grayson County, though the acts constituting him an accomplice may have all occurred in Collin County. Why? Because when his agent Luttrell shot and killed Sharman in the city of Denison, Grayson County, it was appellant also, who, through Luttrell, shot and killed him in Grayson County

The correctness of this doctrine is clearly supported in the death of Uriah, which was caused by David The Lord, speaking through Nathan, said to David: "Wherefore hast thou despised the commandment of the Lord, to do evil in his sight? Thou hast killed Uriah, the Hittite, with the sword, and hast taken his wife to be thy wife, and hast slain him with the sword of the children of Ammon." Now, David was not present when Uriah was killed. David did not with his own hands slay Uriah with a sword, but when Joab placed Uriah in a position in which death was inevitable, and thereby had him killed, under the command of David, David killed Uriah with a sword just as if he had slain him with his own hands. We are of opinion that the offense of the accomplice and his principal is the same, and, if at all, his crime was murder of the first degree, committed in Grayson County, and hence the venue of the case was in Grayson County.

Some further observations on this subject: We desire to call attention to the very wise remark of Judge Marcy in People v. Mather, 4 Wendell, 229. He says: "Writers on criminal law make some difference between the offense of principal and accessory, but it is chiefly as to the order and mode Of Proceeding against them." By Statute of New York it is provided, that all suits, informations, and indictments for any crime or misdemeanor, murder excepted, should be brought within three years after its commission. The word "murder" was held to include as well accessories before the fact as principals. If an accomplice is guilty of a distinct felony from that of his principal, then a prosecution for being an accomplice to murder is barred by three years, for such an offense is not named in the statute regulating limitations. The indictment is sufficient, and not obnoxious to the objections made to it. The evidence complained of, under the circumstances of this case, was admissible. The evidence amply supports the verdict. The judgment is affirmed.

Affirmed.

Judges all present and concurring.