Asher v. State , 128 Tex. Crim. 388 ( 1935 )

Appellant bases his motion on two propositions, first, that he was improperly convicted as a principal, his contention being that inasmuch as he was not present at the time the alleged property was taken, but if guilty at all was guilty upon the theory that he had employed an innocent agent, — that his conviction, if any, could legally be only as an accomplice. We do not so understand the law. In Farris v. State, 55 Tex.Crim. Rep., we held that one chargeable under article 68 of our Penal Code, who employed some other person who could not be punished, to commit an offense, — was a principal offender whether present or not. See, also, Pruitt v. State,91 Tex. Crim. 189; Sheffield v. State, 99 Tex. Crim. 95.

Appellant's second point is that the court's charge submitting the case to the jury under the theory above referred to, is on the weight of the evidence. We have examined the charge and think it not open to said criticism.

The motion for rehearing is overruled.

Overruled.