Jones v. State

In connection with his motion for rehearing appellant brings forward a duly authenticated copy of his exceptions to the charge of the court, showing that same were properly presented to the trial court in correct manner and time. The copy of said exceptions in the transcript, when the case was considered originally, failed to exhibit the certificate of the trial court to the fact that such exceptions had been presented to him and had been by him approved.

There was an exception in rather general terms to the court's charge on principals. Looking to the charge as given, we note that same defined principals in the exact language of article 67, P. C. In Middleton v. State, 86 Tex.Crim. Rep., we discussed at length the law of principals, and called attention to the fact that he who is sought to be so held because of his procuring aid, arms, or means to assist, or who is endeavoring to secure the safety or concealment of, the actual committer of the crime at the time it is committed, — need not be personally present. The test in such case seems to be: Were the parties acting together when the crime was committed, each doing some part in the execution of the common purpose and design? Parties evidently might be principals, though physically widely separated at the moment one or more of them strikes the blow, or breaks the house, or takes the loot. In the case before us each of the three persons charged had arranged and agreed to do his assigned part, though only one of them was personally present and acting in the extraction of the property from the money box in which it was placed in the car. All of said parties were notified of the date when the money would be on the train, and the place and time when same should be taken. Poland, on the train when the money was to be carried, was to give an agreed signal indicating that the surroundings were suitable; Bass, — in possession of the key which would unlock the strong box, — was to board the train, unlock the box and get the money; appellant was to be ready and near by to carry Bass and the money to some place of safety. From this record it appears that Poland gave his signal; Bass got the money and carried it away, — as the state contends, — in appellant's car and with his assistance. Appellant admits being a party to the plan and plot; admitted on the witness stand that he got the key for Bass to use; admitted that on the first date set for the execution of the plot, he waited in his car at a place agreed upon for Bass to come with the money, but testified that on the date when the money was actually taken he had changed his mind, and was not waiting for Bass, and did not aid him to escape with the money. On this point we note from the testimony of members of the train crew that shortly after the train left the place where it is claimed the money was taken, — the fact of said theft being unknown to any of them save Poland, — as the train was going on its way Poland was in the engine cab with engineer Hays and fireman Havard. Poland testified as a witness that he saw appellant on the highway near the track in his car. Engineer Hays testified that about a mile and a half from Prestige (where the theft took place) he saw appellant in a car on the highway near the railroad track. He said he thought there was some one in the car with appellant. Fireman Havard testified that shortly after leaving Prestige, Poland said "There goes old Claud and Bass." Havard said he looked up and saw appellant and Bass in appellant's car on the highway. These facts justified the jury in concluding that appellant was doing his part in the conspiracy at the time the money was taken, i.e., was waiting somewhere near to convey Bass and the money to a place of safety. The trial court told the jury that if they believed appellant had abandoned the conspiracy, or that he did not take part as a principal in the theft, or if they had a reasonable doubt thereof, they should acquit him. This seems to us to be a presentation of appellant's affirmative defense and to be a charge applicable to the facts.

Appellant also excepted to the failure of the court to tell the jury, as a matter of law, that state witness Thomas was an accomplice. We think he was such accomplice and that such a charge would have been proper. See Opinion in Bass v. State, No. 15981, handed down June 23, 1933. However, we are forbidden to reverse cases for errors or omissions in the charge unless we believe same in some way to have prejudiced the rights of the accused, or to have affected the fairness of his trial. The facts in this case are vastly different from those in the case just cited. Examining the record in this case, we observe that appellant as a witness admitted every material thing sworn to by Mr. Thomas. He said he got Thomas to make the key with which the box was unlocked; told Thomas what they wanted with the key, and also admitted that the stolen money was divided and he got his part of it and let Thomas have a part of this money. This being true, it is manifest that no possible harm could have been done appellant by failure to tell the jury that Thomas was an accomplice as a matter of law. As above stated, all of the material facts appearing in Thomas' testimony were put in the case without objection by the testimony of appellant.

We do not think the case one on circumstantial evidence. We appreciate the extended motion for rehearing, evidencing labor and research of eminent counsel for appellant. Many of the cases cited by him are reviewed and overruled in Middleton v. State, supra. It could make no difference in arriving at a solution of the question as to whether appellant was doing his part in furnishing aid, or in assisting Bass to escape, whether he went to or waited at the exact spot on the highway upon which the parties had agreed, — though Poland testified that as the train came to Prestige before the robbery he saw appellant's car on the highway at the graveyard where the parties had agreed for it to be. The point decisive would seem to be whether appellant, in pursuance of the plan, furnished the key, and from somewhere conveniently near by did in fact take Bass in his car and aid him to escape, and did take the money away from where it was stolen. See Rowan v. State,97 Tex. Crim. 130; Slay v. State, 117 Tex. Crim. 519. We see no ground for complaint at the way the case was tried, and find ample support in the testimony for the jury's finding.

Appellant's motion for rehearing will be overruled.

Overruled.