Burow, Jr. v. State

I am not satisfied that there are facts in this case which would authorize the finding by the jury that appellant was a principal within the meaning of our statute, article 74 P.C. This article, in connection with others following it in the same Chapter, has been, I think, correctly construed in the leading case of Smith v. State, 21 Texas Crim. App., 107 and the cases following it including Simpson v. State, 81 Tex. Crim. 389, 196 S.W. Rep., 835. There are other decisions by this court, notably Tittle v. State, 31 S.W. Rep., 677, and Dawson v. State, 38 Tex.Crim. Rep., which, in passing on the facts similar to those involved in the instant case, I think declare that the principles applied in Smith's case were not applicable to this one. The cases mentioned, Dawson and Tittle cases, were written in the light of the Smith case, and without modifying it fixed a limitation upon its scope which appears to me should control this decision. The rule laid down in the leading case mentioned is that, where persons enter into a conspiracy to commit the crime of theft of property contemplating that one or more of the conspirators shall take the property from the possession of the owner and deliver it to another conspirator not present at the time of the taking, to be by him converted, and the proceeds distributed among all, and that when this conspiracy is carried into effect by the taking of the property from the possession of the owner by one or more of the conspirators delivering it pursuant to agreement to another to be converted by him, pursuant to the previous agreement, to the end that the proceeds may be distributed, all are principals within the meaning of the statute. This construction of the statute was regarded by one of our greatest jurists as unwarranted, in that there was a failure of the State to prove that the conspirator, to whom the property was delivered by those first acquiring possession of it from the owner, was, at the time it was taken from the possession of the owner, doing any act in furtherance of the common design. See dissenting opinion of Judge Hurt in, Smith v. State, 21 Texas Crim. App., 107. The majority held, however, that while, at the time the property was taken possession of, one of the conspirators was at his home some forty miles distant from the place of the taking pursuing his ordinary avocations disconnected with the theft; that his previous agreement to take charge of the property when delivered to him and convert and divide the proceeds thereof and the fact that he subsequently did these things, sufficiently satisfied the terms of the statute which declare that to make him a principal he must be doing some act in furtherance of the common design at the time the theft was committed. This view of the majority has since been accepted and applied by this court, and is accepted by the writer as an established interpretation of the statute which is not to be departed from, and from which there is no desire or intention here to depart. The sole question is: do the facts from the standpoint of the State bring the appellant within this rule? In Tittle's case, 35 Tex.Crim. Rep., the court, in passing upon the facts which tended to show that appellant and others conspired to steal cattle; that the others were to actually take them from the possession of the owner, and appellant to receive them drive them to market, sell them and distribute the proceeds, specifically held this did not bring into play the application of the rule in the Smith case, supra. The facts are meagerly reported. As we understand them, however, there was evidence tending to show that appellant, after making the agreement and after the cattle were taken, did not come into possession of them, nor take part in their conversion. In the later case of Dawson v. State, 38 Tex.Crim. Rep., Smith's case was again discussed, and the construction of the statute there given held inapplicable to a state of facts in which the accused agreed to participate in an offense which was subsequently committed by his co-conspirators in his absence and in which he took no actual part, and it is there held that the true rule marking the dividing line between principals and accomplices was laid down in Bean v. State, 17 Texas Crim. App., 60, and this without declaring the rule applied in Smith's case as sound as applied to the facts existing. The subsequent action of this court indicates that these decisions are not in conflict with the Smith case, but that the facts passed upon distinguish it therefrom. For instance, in Kaufman v. State, 70 Tex.Crim. Rep., 159 S.W. Rep., 58, in passing upon facts singularly similar to those involved in the case in hand, the court held that the person receiving the goods after they were taken from the owner having previously encouraged the takers to do so, was not a principal in the theft, but was guilty of the offense of receiving stolen property, a crime that has uniformly been held distinct and separate from the crime of theft. Gaither v. State, 21 Texas Crim. App., 527; Clarke v. State, 81 Texas Crim Rep., 157, 194 S.W. Rep., 157. The element of distinction is tersely put in Welsh v. State, 3 Texas Crim. App., 413 and Rountree v. State, 10 Texas Crim. App., 110, in the statement that, to hold one liable as a principal, there must be a concurrence of act and intent.

In this case the State's position is that appellant having agreed with certain Mexicans that the latter should take the cattle from the possession of the owner and bring them to the stock pens of the appellant and that appellant would pay them a stipulated sum of money for the cattle, it being the intention of the appellant after he received the cattle to dispose of them and retain the proceeds; that to aid the Mexicans in securing possession of the cattle appellant, before they were taken and pursuant to the conspiracy, put in their possession a pistol and a wagon; that the Mexicans using the wagon took the cattle from the pasture of the owner, and while enroute to appellant's pens were arrested and the cattle taken from their possession. The pens in question had been previously constructed and long used. Appellant, at the time the Mexicans caught the cattle and removed them from the pasture, was doing nothing in furtherance of the design, except that it may be inferred from the acts stated above. Was he a principal, or was he an accomplice? Do the facts bring him within the rule in the Smith case, supra, or are they within the rule in Dawson's case, supra? The facts in the Smith case showed that Smith and others entered into a conspiracy to steal cattle which were in Erath County, the plan agreed upon being that the others should take possession of the cattle in Erath County, bring them to Parker County, deliver them to appellant, who would remove them to Tarrant County, sell them and divide the proceeds. This was done. Appellant was held a principal upon the idea that the transaction was not complete as to any of the conspirators until the cattle were sold and the proceeds distributed. In the instant case it was not contemplated that the Mexicans should have any interest in the cattle or in the manner of their distribution, but that they should deliver them to appellant, receive their pay, he taking the risk and assuming the responsibility of disposition upon his own account. To this extent the facts of the cases differ. The transaction was ended so far as the Mexicans were interested when they delivered the cattle to appellant and received the money. In the Smith case the agreement was carried into effect. In this case appellant did not receive the cattle, though he intended to do so. He was not present at the taking, and the part he was to perform after the taking was never done. Do his acts and his intent concur so as to make him a principal? Does his intention to do the act of receiving and paying for the cattle meet the requirements of the statute, that he must do some act in the perpetration of the theft? The statute on accomplices is as follows:

"An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or

"Who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or

"Who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or

"Who prepares arms or aid of any kind, prior to the commission of offense, for the purpose of assisting the principal in the execution of the same."

The acts which make one guilty as an accomplice are performed before the actual offense is committed. Branch's Ann. P.C., p. 358, Sec. 700; West v. State, 28 Texas Crim. App., 1; Pendley v. State, 71 Tex.Crim. Rep., 158 S.W. Rep., 811, and other cases there cited. The cattle were taken by others. Appellant was not present when they were taken, and while his co-conspirators were taking them and after they were taken, did no affirmative act. Before they were taken appellant agreed to it, advised it, encouraged it, offered an inducement for it in the promise to purchase the cattle, and furnished arms and a wagon to aid in its perpetration. None of the elements constituting him an accomplice appear to be wanting. The element of actual participation at the time or during the commission of the offense required to constitute him a principal appear to be absent. Michell v. State, 44 Tex.Crim. Rep.; Menefee v. State, 67 Tex. Crim. 201, 149 S.W. Rep., 138; LaFell v State, 69 Tex. Crim. 307, 153 S.W. Rep., 884; Silvas v. State, 71 Tex. Crim. 213, 159 S.W. Rep., 223; Womack v. State, 74 Tex. Crim. 640, 170 S.W. Rep., 139; Jones v. State, 57 Tex. Crim. 144. The mere fact that a conspiracy is shown does not make all parties to the conspiracy principals, whether they were present or not when the offense was committed. Branch's Ann. P.C., p. 359; O'Quinn v. State, 55 Texas Crim. Rep,, 18; Bell v. State,39 Tex. Crim. 677; Sessions v. State, 37 Tex. Crim. 58; Phillips v. State, 26 Texas Crim. App., 228. To hold appellant a principal, in my judgment, extends the construction of the statute beyond the limit fixed in the previous decisions of this court. It would make his guilt as a principal dependent not upon his acts done in furtherance of the common design, but at most upon an intent to do acts which were never done.

I, therefore, believe that the correct disposition of the case requires that the motion for rehearing be granted, and the judgment reversed and the cause remanded, and it is so ordered.

Reversed and remanded.