Woodworth v. State

Willson, Judge.

This appeal is from a conviction under an indictment charging the defendant with conspiring with Ben. Hunt and Charles Withers to commit the crime of burglary.

There is no evidence proving that Withers entered into the alleged conspiracy, or had any knowledge of or connection with it. On the contrary, Hunt, the other alleged conspirator, who was the principal witness in behalf of the State, testified that Withers did not enter into the conspiracy. Said Hunt testified' that the defendant and himself entered into a positive agreement to commit the burglary,—: that witness, at the time of entering into said agreement, had no intention of committing the burglary, but that his sole purpose and intent in making said agreement was to entrap the defendant, as he suspected that said defendant was contemplating the commission of some offense.

Among other things, the court instructed the jury that, if they believed from the evidence that the conspiracy was entered into between Hunt and the defendant, the offense was complete, and the State was not required to prove that Withers was also a party to the conspiracy. Upon this subject the defendant requested a special instruction as follows: “ The State has charged a conspiracy between defendant, B. B. Hunt, and Chas. Withers, and this allegation must be proved beyond a reasonable doubt.” This instruction was refused. Defendant requested a further charge that “ the State must make out a conspiracy as alleged; ” which was also refused. Exceptions were saved by defendant to the charge of the court, and to the action of the court refusing the requested instructions.

In general, “ it is sufficient to prove so much of the indictment as shows the defendant to have been guilty of the substantive crime therein stated, though not to the full extent charged on him.” (Whart. Cr. Ev., § 129.) Mr. Bishop says, “ the proof for the prosecution should cover every particular, whether of act or intent, or of the place or time of the act, essential in a prima facie case. But it need not extend to surplusage, unless rendered material by the form of the allegation.” (1 Bish. Cr. Proc., § 1052.) Chief Justice Shaw, in Com. v. Griffin, 21 Pick., 523, stated the rule in the following language: “Although the general rule is, that every máterial averment must be proved, yet it by no means follows that it is necessary to prove the offense charged to the whole extent laid. It is quite sufficient to prove so much of the charge as constitutes an offense punishable by law.”

In this case, if the agreement between Hunt and the defendant was in law a conspiracy, the proof established such .conspiracy, and the substantive crime charged in the indictment was proved, and the allegation that Withers was a party to such conspiracy was surplusage, and not rendered material by the form of the allegation ; and hence it was not necessary to prove such allegation. This seems to have been the view of this court in Paul v. The State, 12 Texas Ct. App., 346, where the same question occurred, but was not discussed by the court,— the case having been disposed of upon another ground. Our opinion is that the trial court did not err in giving the charge complained of nor in refusing the special charges mentioned.

The paramount question in the case is, does the agreement between Hunt and the defendant, within the meaning of the law, constitute the offense of conspiracy ? Our Penal Code defines the offense of conspiracy to be a positive agreement entered into between two or more persons to commit one of certain named offenses, burglary being one of the offenses named. (Penal Code, arts. 800, 802, 804.) An “ agreement,” as defined by Webster, is “ the union of two or more minds in a thing done or to be done. A coming or knitting together of minds.” One of the definitions of the term given by Bouvier is: “ A coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing.” Another definition quoted by the last named author is, that it “ consists of two persons being of the same mind, intention, or meaning, concerning the matter agreed upon.” (1 Bouv. Law Die., title “ Agreement.”)

[Opinion delivered February 20, 1886.]

Such being the recognized meanings of the term “ agreement,” we are of the opinion that the transaction between Hunt and the defendant did not constitute such a union of their minds, such a concurrence of purpose, intention and determination, as the law contemplates in defining a conspiracy. Hunt at no time intended to commit, or to assist in the commission of, the burglary. His assent that it should be committed was feigned, not real. If it was in the mind of the defendant to commit the burglary, Hunt was not of the same mind, for he did not intend to commit it or aid in its commission, but on the contrary he intended to prevent its commission. There was in fact no agreement on his part to engage in the commission of the burglary. There wTas in fact no union or concert of his will with that of the defendant, and such union or concert of wills must exist to constitute conspiracy. (2 Bisb. Cr. Law, § 190.) A conspiracy cannot be committed by one person alone. (Id., § 187.)

This being our view of the law, we hold that the evidence fails to prove a conspiracy, and the conviction is therefore set aside, and the cause is remanded.

Reversed and remanded.