author: DAVIDSON, P. J.

text:
    BLACKLOCK v. STATE.
    (No. 4492.)
    (Court of Criminal Appeals of Texas.
    June 20, 1917.)
    1. Homicide <&wkey;116(5) — Self-Defense—Apparent Danger.
    Defendant’s statement that he struck because he was afraid, when deceased reached behind him, he was going to get a gun or something and do him injury, shoot or kill him, presents the question of apparent danger, with right to self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 162.]
    2. Homicide <@=>119'— Self-Defense — Other Means.
    The law with reference to resort to other means, or no more force than necessary, does not apply to self-defense, actual or apparent.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 172-174.]
    3. Criminal Law <@^o556— Evidence — Oon-CLUSIVENESS ON PROPONENT.
    The state placing statements of defendant before the jury is bound thereby, unless disproved.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 918, 1258.]
    Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Alonzo Blackloek was convicted, and appeals.
    Reversed and remanded.
    T. J. Arnold, of Plouston, and Grady B. Ross, of Henderson, Sor appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was awarded three years’ confinement in the penitentiary for manslaughter.

There are several questions in the case. One of these suggests the court was in error in charging on the theory of self-defense. There were no eyewitnesses, and the wounds on tlie body of deceased showed that he was struck or killed with a blunt instrument, and the state relied upon the. confessions and statements of appellant that he killed him with an axe. The state used the witness Young as to the statements of appellant made to him on Sunday morning after the killing which occurred Saturday night. Young said appellant told him he killed deceased in the nighttime; said the trouble came up about six bits; that they had been playing a game of cards for fun, “and that after the other bunch had left him — I don’t remember whether they made up a fire after the others left or not — there - was some Imore boys with them; that they had been hunting all night, and had stopped to make a fire, but he didn’t tell me whether the others of the bunch had gone on before they built the fire or not, but anyway there wasn’t anybody at the fire but the defendant and the deceased.” That at the time of the killing no one was present but himself and deceased. That appellant told him he and deceased had been playing cards for fun, and they began betting on a little game for money, andj defendant put down six bits and deceased picked it up and would not give it back to him; that he begged the deceased to give his'money back to him, and he refused and “made fun of him about being out there! without any clothes on” that he kept begging for his money and deceased would not give it to him; that deceased acted like he wanted to do something, and that from the way he talked he judged deceased had a gun or something, and that he knocked the deceased in the head with an axe; said that he knocked him down and hit him twice afterwards; and he said he started to leave, and thought he would hit him again, but decided he would not do it; that he felt sorry for him. He did not say what the negro was doing to him when he hit him, except that he said he put hisi hand behind him. “He told me that at the time he struck the deceased something had come up about six bits. He told me that the deceased had told him that he was ‘a ragged -son of a bitch,’ and had no business out there if he didn’t have on any clothes. That deceased had his money and would not give it to him. He tried to persuade the deceased to return his money to him, and deceased cursed him, and told him he had no business out there without any clothes on. He also told me that at the time he got his axe, the deceased had put his hand behind him, and that he thought the deceased intended to hurt him or shoot him or something; that he didn’t know whether the deceased had a gun or not, and he didn’t want to take chances.” This is enough to show the position of the case. The state put all this testimony before the jury.

The court charged upon murder, manslaughter, self-defense, and insanity, which was also raised by the evidencie. • The court instructed the jury also that the state having put in this testimony was bound by it unless it could prove the statements false, and upon that theory charged also on self-defense.

In regard to self-defense the court charged:

“Every person is permitted by law to defend himself against any unlawful attack threatening injury to his person, and is justifiable in using all necessary or reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law if committed in defense of one’s person against any unlawful or violent attack made in such manner as to produce a reasonable expectation or fear of death or some serious bodily injury. It is not necessary to the right of self-defense that the danger should in fact exist; it may be only apparent and not real; if it reasonably appears from all the circumstances of the ease that danger exists, the person threatened with such apparent danger has the same right to defend himself against it, and to the same extent as he would be if the danger were real, and in determining the appearance it must be viewed from the standpoint of the defendant alone at the time and from no other standpoint; but the defendant is not required to retreat in order to avoid the necessity of killing his assailant.
“If you believe from all the evidence before you that from the acts of the said Arthur McKinney, if any, or from his words coupled with his acts, if any, there was created in the mind of the defendant a reasonable apprehension that he, the said defendant, was in danger of losing his life or suffering serious bodily harm at the hands of the said Arthur McKinney, then the defendant had the right to defend himself from such danger or apparent danger, as it reasonably appeared to him at the time, viewed from his standpoint; and, if you so find, you will acquit him. But in determining the rights of the defendant under his plea of self-defense, and in determining whether there was reason to believe that danger existed, viewing the appearances of danger from the standpoint of the defendant, the defendant could not use any more force than was necessary to defend and protect himself from the threatened danger.”

Exception was taken to this charge, and it should have been sustained. Appellant’s statement in regard to the matter was that he struck because he was afraid, when deceased reached behind him, he was going to get a gun or something and do him injury, shoot or kill him. This would be apparent danger, and ought not to have been trammeled by a charge restricting the amount of force appellant was authorized to use. The law with reference to resort to other means, or no more force than was necessary, does not apply to self-defense, actual or apparent. Appellant either had the right to kill from the appearance of danger, or he did not. He was not required to retreat, nor was he burdened with the restriction of not using more force than was necessary to meet his belief of danger to himself under the circumstances stated. The state placed this evidence before the jury, coming from the defendant as his statements, and would be bound by it unless disproved. There was no evidence before the jury as to any matters arising at the time of the homicide, there being no eyewitness, so far as the' record is concerned, except the defendant, and the state '.used Ría statements to the witness Young, and would be bound -by them unless disproved, and the court so charged the jury.

There are other matters in the ease which we deem unnecessary to discuss. The continuance as refused will not arise upon another trial as presented in this trial, and the manner of summoning the jury will not so arise; at least ought not to do so.

Eor the reasons indicated the judgment is reversed, and the cause is remanded.
      (gssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MORROW, J.

license: Public Domain

text:
    BARRETT v. STATE.
    (No. 4483.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Criminal Law t&wkey;1169(2) — Appeal — Harmless Error — Admission oe Evidence.
    In a murder trial, the admission of testimony that accused said that there were but three bad men, Jesse James, Harry Tracy, and “Gyp-the-Blood,” and that he was “Gyp-the-Blood,” was not reversible error, where another witness testified similarly without objection.
    [Ed. Note. — For other cases, seo Criminal Law, Cent. Dig. § 3138.]
    2. Criminal Law <&wkey;720(5) — Trial — Argument oe Counsel.
    In a murder trial, county attorney’s argument calling attention to the class of witnesses defendant had placed on the stand, and naming' one as “brought from the jail where he had been placed for pistol toting to testify on his behalf,” was improper.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671.]
    3. Criminal Law <&wkey;730(8) — Appeal and Error — Harmless Error.
    Such improper argument would not require reversal where the court sustained accused’s objection thereto, and the prosecuting attorney promptly withdrew it, and such witness’ testimony was cumulative.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 1693.]
    On Motion for Rehearing.
    4. Homicide <&wkey;332'(3) — Appeal—Verdict eor Death Penalty — Conflicting Evidence.
    Where verdict assessing death penalty for murder was supported by the evidence, it would not be disturbed on appeal, although such evidence was sharply conflicting, and the appellate court might render judgment less harsh if sitting as jurors.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 791.]
    Appeal from District Court, Matagorda County; Sami. J. Styles, Judge.
    Johu Barrett, alias Blood, was convicted of murder, and appeals.
    Affirmed.
    J. W. Conger, of Bay City, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted and convicted of the murder of Louis Adams, and the death penalty assessed against him.

That the deceased was killed by appellant is not contested. The state’s evidence tends to show an assassination and express malice; that of the appellant, self-defense. The homicide took place a.t night at a dance in a restaurant kept by - a negro woman by the name of Exine Matthews. Deceased and a woman called Ethel Anderson were living together. Appellant stepped on this woman’s foot. She reported this to Adams, deceased, and a quarrel ensued. Appellant claimed to have apologized to the woman, and in this he was corroborated, though there was a conflict of evidence. There were a great many negroes at the dance, some of them in the house and many of them on the porch or gallery in front of it. During the quarrel appellant remarked, “You negroes are crazy to fool with me.” Deceased replied, “You ain’t no more to fool with than anybody else.” Appellant said, “I will show you,” and stepped out of the house and disappeared. Deceased walked out on the porch, according to the testimony of the state’s witnesses, and while standing there engaged in conversation, with his hands in his pocket, appellant approached him unawares, coming within a very short distance, near enough to touch him with the pistol, as testified to by the state’s witnesses, and fired several shots. Some of them hit the post by which deceased was standing, some the house, and one entered deceased’s stomach, striking him, in front, but not going entirely through his body. Deceased, when shot, stepped off the gallery and followed appellant á few steps, appellant backing off and continuing to fire. After the homicide appellant fled, and in passing a house where there was a light he ordered the door closed. He was arrested at Smithville some time after the homicide. Four witnesses testified that they were eyewitnesses to the shooting. Another testified to res gest£e statements of the deceased that the appellant shot him. Appellant claimed to have met the woman Ethel Anderson in a rooming house upon her solicitation and to have been threatened by deceased on account of this meeting; there being evidence and threats both direct to appellant and communicated by others. There was evidence aside from that of appellant from which the jury would have been justified in concluding that the deceased had on his person a pistol at the time of the homicide, and that he had gone to his house and gotten it after the quarrel began. There was no evidence except that of appellant of any effort on the part of deceased to use his pistol, nor of any indication that at the time he shot him deceased knew of appellant’s presence. Appellant claimed that when he left the premises deceased was standing on the gallery with a pistol in his hand; that he went to a toilet, and returned and found deceased still standing on the gallery, and had a conversation with him; that deceased pulled out his pistol and apparently tried to shoot; and that on this account appellant fired.

Tlie issues of murder and self-defense were submitted to the jury in a charge which was not complained of and which fairly submitted these issues to the jury.

There are two bills of exceptions, one to the evidence of Exine Matthews, as follows:

“AVhile the witness Exine Matthews, for the state of Texas, was upon the stand, the prosecuting attorney asked the witness if she knew the defendant, John Barrett. AVitness answered that she did, and then the prosecuting attorney asked the witness if she knew what the defendant said about his name being ‘Gyp-the-Blood,’ to which' the defendant objected because the character of the defendant was not an issue in the cause, and, such being the case, the testimony would be prejudicial to the defendant, John Barrett, and further because it would be immaterial and irrelevant. But, over the objection of the defendant, the witness was permitted to answer as follows: ‘Defendant said that there was but three bad men, Jesse James, Harry Tracy, and ‘Gyp-the-Blood,’ and that he (defendant) was ‘Gyp-the-Blood.’ To which testimony the defendant then and there in open court excepted, and saved his bill of exception, and here now tenders his bill of exception thereto, and asks that the same be allowed and made a part of the record in this cause.”

This bill hardly measures up to the rule laid down in Vernon’s Ann. O. O. P. p. 537, requiring a sufficient statement to enable the court to determine from the bill the relation of the matter complained, of to the case and its probable effect thereon. In view of the gravity of the case, however, it will be considered in connection with the record.

Appellant was described in the indictment as John Barrett, alias Blood. Exine Matthews on the subject mentioned in the bill of exceptions is shown by the statement of facts to have testified, in response to questions asked by the prosécuting attorney, as follows:

“I heard the shooting, but didn’t see it. I thought it was a firecracker. Yes, sir; I seen Blood inside my house just before the shooting occurred. Yes, sir; I heard him say something about who he was; he said he was Harry Tracy or something — Harry Tracy and Jesse— Q. Jesse James? A. Yes, sir; Jesse James, and Blood-the-Something. Q. And Blood-the-Gyp or Gyp-the-Blood? A. Yes, sir; something like that. Q. What did he say about it; who was he? A. He said, T am John; I am Jesse Something, and John-the-Something;’ X can’t get that thing fixed in my mind; I want to talk right. No, sir; I didn’t hear Blood say that there are only three bad men, Jesse James, Harry Tracy, and Gyp-the-Blood, and that he was Gyp-the-Blood. No, sir; I didn’t.”

Another witness, Shed Giddison, testified that about a half hour before the homicide he heard a conversation between appellant and a girl at the dance, which he detailed as follows:

“He asked this girl to dance with him, and she told him she didn’t want to' dance, and he replied to her, he said: ‘You are scared of Pish, the reason you don’t want to dance with me, but this is — •’ I heard the three men’s names he called, but I can’t think of but one he called; he called the other two names, and he said: ‘This is Gyp-the-Blood; I am sufficient to protect you, if you dance with me; I ain’t scared of Pish, if you is.’ That is all he said on that line. Pish is that fellow Will Dennis, is ail I know. He used to run a cleaning shop down there somewhere. Yes, sir; Blood said he was Gyp-the-Blood.”

There is no bill of exceptions to this testimony of Gaddison.

We are unable to say that the testimony of the witness Matthews, as disclosed by the record, it being apparent that the witness Gaddison testified to the same fact as that - which the bill shows the witness Matthews to have related, was inadmissible; and the rule is well settled in this state that the admission of testimony is not cause for reversal if the same fact is proved by other testimony not objected to. Rogers v. State, 26 Tex. App. 404, 9 S. W. 762; Walker v. State, 17 Tex. App. 16; Johnson v. State, 26 S. W. 504; Stephens v. State, 26 S. W. 728; Carlisle v. State, 37 Tex. Cr. R. 108, 38 S. W. 991; Wagner v. State, 53 Tex. Cr. R. 307, 110 S. W. 59.

Another bill complains that the county attorney in his closing argument used the following language:

“I will ask the jury to look at the class of witnesses the defendant has placed on the stand, Willis Hawkins, brought from the jail where he had been placed for pistol toting to testify on his behalf.”

The bill shows that the court sustained appellant’s objection to this argument and that the prosecuting attorney withdrew and retracted the remarks. No request was made of the court to charge the jury to disregard this argument. The witness AVillis Hawkins was shown by the statement of facts to have testified to details of the altercation which occurred in the house prior to the homicide. His testimony was cumulative in,its nature of other testimony which showed that when appellant stepped on the negro woman’s foot he begged her pardon, and also of the fact that in the quarrel that ensued between the appellant and deceased both of them used rather bantering or braggadocio language. AVhile not in the same language, the same fact in substance was testified to by several witnesses. This witness was not an eyewitness to the shooting, but only to the conversation and transactions which preceded it. The argument was improper, but not, we think, of such a harmful character as to require a reversal of the case, in view of the fact that the court sustained an objection to it and the prosecuting attorney promptly withdrew it. Branch’s Ann. P. C. p. 204, § 362, and cases listed.

There is a well-defined conflict in the evidence as to the occurrences at the immediate time of the shooting, and the evidence developed some discrepancies as to the location of the various witnesses and as to the number of people on the porch at the time of the shooting, but in the development of the state’s case several witnesses were produced whose testimony justified the jury' in finding that the deceased was making no demonstration against appellant and was not aware oí his presence at the time he was shot. With this testimony in connection with the evidence of malice and that of flight on the part of appellant we would not feel authorized to disturb the verdict. Schwartz v. State, 47 Tex. Cr. R. 213, 83 S. W. 195, 11 Ann. Cas. 620; Eddy v. State, 82 S. W. 513; Black v. State, 46 Tex. Cr. R. 590, 81 S. W. 302; Branch’s Ann. P. C. p. 1178, § 2096, and cases listed.

The judgment of the lower court is affirmed.

On Motion for Rehearing.

The rehearing in this cause is sought upon the ground that the conflicting evidence as to the provocation leading up to the homicide does not warrant the extreme penalty. It cannot be denied that the case is one in which there is a sharp conflict in the evidence. It is one, however, in which the respective theories of the state and the defendant are supported by testimony of a definite and positive character.

After a careful review of the record, with full consciousness of the serious nature of the case, we have found no departure from the rules of procedure laid down by our law for bringing before the jury the facts, and advising them of the law to the end that they might perform the duty imposed upon them of solving the controversy. They had the privilege of measuring the punishment to be assessed. This court has no such authority. Though its members might feel that, if they were sitting as jurors, they would render a judgment less harsh, they could not upon this account alone set aside the verdict without doing violence to the duty, painful at times, to order an affirmance of judgments where the evidence is sufficient, the rules of law followed, and nothing to indicate that the jury was not impartial, nor that the trial was unfair.

The motion for rehearing is overruled.
      «©s^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, J.

text:
    JACKSON v. STATE.
    (No. 4504.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.
    On Motion for Rehearing June 29, 1917.)
    1. Ceiminal Law <&wkey;956(3) — New Trial-Contest.
    Code Or. Proc. 1911, art. 841, expressly allows the state to take issue as to truth of causes set forth in motion for new trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2375.]
    2. Criminal Law <&wkey;939(3) — New Trial— Newly Discovered Evidence.
    In a murder trial, new trial would not be granted on affidavit of accused’s daughter as to who shot first, nor affidavit as to character of wound on deceased, as newly discovered evidence, where both witnesses attended the trial and accused knew that his daughter was present at the killing and saw and heard all that occurred.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2319.]
    Appeal from District Court, Eannin County; Ben H. Denton, Judge.
    Dan Jackson was convicted of manslaughter, and appeals.
    Affirmed.
    Cunningham, & McMahon, of Bonham, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State. ,
   PRENDERGAST, J.

Upon an indictment and trial for murder appellant was found guilty of manslaughter, and his punishment assessed at five years in the penitentiary.

Appellant and deceased, Ben Carter, were negroes with families, and lived several miles apart. Appellant had a daughter Effie, about 17 years old. Deceased had a son Clarence, about grown. Clarence had been courting Effie, and waited on her from week to week. They had agreed to be married, .or at least Clarence had asked appellant for her-. Appellant had no particular objection to Clarence, but it seemed Effie had another beau, and the indications are he preferred the other beau to Clarence, and while he did not decline to let Clarence have her, he deferred the marriage. Appellant left his home one morning, went several miles away on some business and did not return until after night, between 9 and 10 o’clock. That morning Clarence got a buggy, went to the school where Effie was attending, got her, they were married, and he took her to his father’s. That night when appellant returned home, his wife told him that Clarence had taken Effie, and she understood that they had married. Appellant thereupon, late at night, got on his horse, took his shotgun, loaded it, and went the several miles to deceased’s, reaching there about 1:30 at night. Deceased and all his family, including Effie and Clarence, were in bed asleep. Appellant hailed and woke them all up. Deceased’s house had three rooms to.it, two adjoining and a kitchen attached to one of them. Clarence and Effie were in one room; the deceased, his wife and his other children were in the other room. There was a door from each room, about the center of it, to the outside and a door in the partition between the two rooms. When appellant woke deceased and his family, deceased got up, lit a light, and went to the front door of the room he occupied and called to know who it was. Appellant told him, and demanded to know if his daughter Effie was there, and demanded that she come out, and that deceased have her to come out. Deceased called to her, and told her that her father wanted her. She had heard his call for her, but did not go to the door or out to him. The testimony up to this point seems to be uncontradicted. The state’s testimony by deceased’s wife and his two daughters and Clarence was all to the effect that appellant began cursing and abusing deceased and- his family, denouncing their act of stealing his daughter and making serious threats. Appellant in effect denies this, and claims that deceased was doing the cursing and abusing him. Who was right in this matter was a question for the jury. Deceased’s wife and his said children testified that without any provocation appellant then shot and killed deceased. That he shot and killed him is unquestioned. The deceased’s family further testified, all of them, that appellant shot deceased, and that then Clarence got the gun in the house, and at once shot appellant, striking him in the jaw and side of the neck, it seems with small shot; at least the evidence does not show that appellant’s wound was serious. Appellant claims that he was shot first, and that he then shot. The court in a proper charge submitted all of the issues raised by the testimony, including self-defense and manslaughter. There is no complaint at all of the court’s charge.

The sole question is based on the court’s refusal to give appellant a new trial on what he claimed was newly discovered testimony. The claimed newly discovered testimony was that of Ed Brent and' appellant’s daughter Effie. Their affidavits are attached to the motion for a new trial. The state contested the motion by proper pleadings and also attached the affidavit of Effie and of Brent to its contest. This matter is not presented by any bill of exceptions.

Brent’s affidavit is to the effect that he was a deputy sheriff of said county, land in his official capacity went to deceased’s soon after he was killed, saw his’ body and the wound that caused his death; “that the w’ound on deceased was on his side, and extended almost across his body, and the same size up and down, and was considerably larger than the wound on defendant.”

Effie’s affidavit was to the effect:

“That her husband shot her father before her father shot Ben Carter; that she has not, before- making this affidavit, made this statement to anybody except her mother; that she denied this statement to the attorney for her father on the day he was tried for killing the said Ben Carter; that she made a contrary statement the morning after the killing, but that such statement was made at the instance and under the direction and orders of her husband, Clarence Carter.”

In the state’s contest it attached her affidavit made before the then district attorney’ as a notary public, to the effect that her father “told me to come out there, and my father cursed at me and told me to come on, and then the next that I heard was the shot, and then Clarence Chrter shot.” In contradiction of her affidavit attached by appellant to his motion the state three days later procured her affidavit to this effect:

“That she cannot say which one shot first, Clarence Carter or her father, Ben Jackson;” that the said affidavit she made which was attached to appellant’s motion “was not explained to her, and that she did not understand the contents of same; that it was not explained to her, and that her mother, Tishie Jackson, told me to sign same, and showed me where to sign my name.”

Appellant claims that this affidavit from her was obtained by the special prosecuting attorney and criticizes his manner of getting it. The affidavits and record clearly show that when this latter affidavit of Effie wag procured it was written by the said special prosecuting attorney and that he and the deputy sheriff went to where the witness was, and the deputy sheriff’s affidavit shows that when this attorney was talking to her, she stated twice that her ’husband shot first; “that she finally told him that she didn’t know which shot first;” that he then sent the deputy sheriff 2% miles away for the justice of the peace ;■ and that he went and got the justice of the peace and brought him back; and that Effie swore to said affidavit before the justice of the peace. The attorneys’ affidavits are to the effect that before the trial, Effie was in attendance, but that she then stated to them that appellant shot first, and she would not say that her husband Clarence shot first. They do show in their affidavits, however, that Effie’s mother had-told them before that that Elffie had told her that Carter shot before appellant did. The affidavit of Mr. Brent, the deputy sheriff, further shows that he had been subpoenaed and attended as a witness' at the instance of appellant ; that he was present and sworn in with the other witnesses when the case went to trial; that he heard a part of the testimony, but that while the trial was going on he went out of the courthouse, and before he returned the testimony was concluded. He was not called for as a witness by appellant after the trial began. They claimed that they had had him subpoenaed for the purpose of proving that Clarence Carter had stated to him that he had a gun in the housg at the time of the shooting; that they were informed that Clarence would deny that on the trial, and that when he swore that he had the gun, and that he had shot’ appellant, as shown above, they did not introduce the deputy sheriff. Appellant made a motion to strike out the state’s contest of his motion and the alleged affidavits of Effie Carter attached by the state to its contest. The court correctly overruled this. The state had the right -to file a contest, and the court should not have struck it out. A different question might be presented if appellant had made a motion to strike out the said affidavit of Effie sworn to before the district attorney as a notary public. For aught that appears, the court may have, in passing on the matter, excluded that affidavit from his consideration. Even if he did not, Effie in the affidavit attached by the appellant swore that she had made a statement (doubtless this one) the next day after the killing to the same effect. Hence no injury could have occurred to appellant on that score.

This court has at all times and in all cases held, as stated by Judge White in his Ann. O. O. P. § 1149, that an application for a new trial on the ground of claimed newly discovered testimony “is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burnes v. State, 12 Tex. App. 270; Bell v. State, 1 Tex. App. 598; Templeton v. State, 5 Tex. App. 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Tex. 209; Terry v. State, 3 Tex. App. 236.” This principle and these cases have been cited and approved in many later cases. One only need be cited. Gray v. State, 65 Tex. Cr. R. 206, 144 S. W. 283.

The claimed testimony of neither Brent nor Effie Carter could have been newly discovered under the terms of the law. The record clearly shows that the appellant’s attorneys, before the trial, knew that Effie Carter had stated to her mother that h^r husband shot first. The appellant knew that she was present on the night of the killing, and must have seen and heard all that occurred. The law is, as stated by Judge White in said section, that:

“Where the testimony is of such a character as that it must have been known to the counsel for the defendant before the trial, it is in no sense newly discovered evidence. Burton v. State, 33 Tex. Cr. R. 138 [25 S. W. 782]. Where the witness was interviewed by defendant's counsel upon one phase of the ease only, and was not put upon the stand, his testimony upon another phase is not newly discovered. Williams v. State, 45 S. W. 572. Where it appeared that the proposed witness had been subpoenaed in the case, but was not put upon the stand to testify, the testimony was not newly discovered. Powell v. State, 36 Tex. Cr. R. 377 [37 S. W. 322]; Halliburton v. State, 34 Tex. Cr. R. 410 [31 S. W. 297].”

This statement of the law by Judge White, and said decisions, have all the time been cited, approved, and adhered to. It is needless to collate the later cases. But see Stewart v. State, 76 Tex. Cr. R. 54, 172 S. W. 979; Henson v. State, 74 Tex. Cr. R. 282, 168 S. W. 89; Black v. State, 71 Tex. Cr. R. 621, 160 S. W. 720.

The court’s action in refusing appellant a new trial was correct under the law and record in this cause.

The judgment is affirmed.

On Motion for Rehearing.

As stated in the original opinion, the sole question in this case is whether or not the court erred in refusing to grant the appellant a new trial on what he claimed was newly discovered .evidence. What the record showed on this subject was fully and accurately stated in the original opinion. It is unnecessary to here again repeat all that.

The statute (article 841, C. C. P.) provides:

“The state may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue.”

This statute, without any doubt, expressly as it stated, authorized the state to take issue with defendant upon the truth of his claimed newly discovered testimony. The state did this in literal compliance -with the statute. The state’s answer to the appellant’s claim of newly discovered testimony contesting this was as follows:

“Now comes the state by her district attorney and takes issue with the defendant upon the truth of the causes set forth in his motion for a new trial in.the above entitled and numbered cause, and says the causes therein alleged are not true and this he is ready to verify.
“A. Jj. Robbins, District Attorney.
“The state hereto attaches Exhibits A, B, and C, affidavits of Effie Garter and Ed Brent, which is made a part1 hereof.
“A. L. Robbins, Dist. Attorney.
“J. M. Baldwin; Attorney for State.”

The contents of these affidavits is accurately given in the original opinion. The appellant made this motion:

“Now comes the defendant in the above cause and files this contest and moves the court to strike out the private prosecutor’s contest of defendant’s motion for new trial, and the alleged affidavits of Effie Carter.”

Then follows certain alleged reasons for striking out the state’s contest and the affidavits attached thereto' as said exhibits. The court, upon hearing and considering this motion, made this order:

“This day came on to bo heard the defendant’s motion to strike out and' not consider the contest of state and affidavits attached thereto filed in this cause in contest to defendant’s amended motion for new trial, and the court, after hearing said motion, is of the opinion that same should be overruled, and the said motion is hereby overruled.”

There can be no question but that the state had the right, and it was its duty to have, as it did, contested appellant’s motion for a new trial and the causes claimed therefor; and the court could not have legally done otherwise than it did, overrule his motion to strike out that contest. Then when the court heard the motion for new trial and the state’s contest, if the state had then offered in evidence the affidavit of Effie Garter, sworn to before the district attorney as a notary public, he should have objected thereto and shown that he did by proper bill of exceptions. He did not do this. The record does not disclose that he then objected to the introduction of that affidavit in evidence if it was offered, nqr to the court considering it; but even if he had, as shown in the original opinion, he could not have been injured thereby because Effie Garter, in her affidavit which appellant attached to his motion for a new trial, expressly shows that wherein she then stated that her husband, Clarence, shot first, “that she made a contrary statement the morning after the killing.” This could have referred solely to the affidavit that she had made before the district attorney that appellant shot deceased first.

But, in addition to all of this, the record clearly and distinctly shows that neither the claimed testimony of Effie nor of Mr. Brent was, or could have been, newly discovered. The -record distinctly shows that appellant' positively knew that Ms daughter Effie was present at the time he killed deceased and when Clarence Carter shot him. It shows that the state had not subpoenaed Effie as its witness, and that when he found that out he, Mmself, had her subpoenaed and in attendance on the court on the trial of the case. ,It also positively shows that Effie had told her mother, appellant’s wife, prior to that time that Clarence Carter shot first. Appellant's attorneys, by their affidavit’s, show that they knew this. Appellant himself is bound to have known it. The record also clearly and distinctly shows that the location and extent of the wound on the deceased, inflicted by appellant, and which killed deceased, could not have been newly discovered testimony. There can be no doubt but that many witnesses could have been obtained by the slightest diligence to show the location and extent of this wound. So far as the testimony of deputy sheriff Brent on the subject is concerned, the record positively shows that the appellant had Brent subpoenaed as Ms witness, that he attended the trial as such; was sworn as a witness for him ¿t the time the trial began, and that the appellant knew all of this. He did not call him as a witness; and, even if he was temporarily absent out of the courtroom when the trial was concluded, he says that he made no motion for a continuance or postponement to get him, and made no attempt whatever to then get Mm or introduce him ' as .a witness. We here repeat what we quoted from Judge White in the original opinion:

“Where the testimony is of such a character as that it must have been known to the counsel for the defendant before the trial, it is in no sense newly discovered evidence. Burton v. State, 33 Tex. Cr. R. 138 [25 S. W. 782], Where the witness was interviewed by defendant’s counsel upon one phase of the case only, and was not put upon the stand, his testimony upon another phase is not newly discovered. Williams v. State, 45 S. W. 572. Where it appeared that the proposed witness had been subpoenaed in the case, but was not put upon the stand to testify, the testimony was not newly discovered. Powell v. State, 36 Tex. Cr. R. 377 [37 S. W. 322]; Halliburton v. State, 34 Tex. Cr. Rep. 410 [31 S. W. 297].”

Mr. Branch, in his Ann. P. G. p. 127, correctly states the law thus:

“Where it appears that defendant or his counsel knew of the alleged new testimony at or before the trial, or that defendant knew that ■the proposed new witness was present when the transaction occurred, or where the alleged now testimony is of such a character as that defendant must necessarily have known of its existence prior to the trial, and the trial court in the exercise of its sound discretion has refused a new trial, the judgment will not bo reversed to permit him to take advantage of his own negligence and obtain a new trial to get testimony which he should and could have had at the trial.”

He cites in support of this text some 42 eases, all of wMch. are in point. See, also, Waggoner v. State, 190 S. W. 495.

There can be no question but that under the law, and what is plainly disclosed by this record, the court’s action in refusing a new trial was correct.

The -motion is overruled.
      <&wkey;For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


text:
    LE MASTER v. STATE.
    (No. 4163.)
    (Court of Criminal Appeals of Texas.
    April 18, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Banks and Banking &wkey;>62 — Offenses by Officers — Bobbowing from Bank.
    In the prosecution of a state bank president for unlawfully becoming indebted to the bank by being a member of a partnership, consisting of himself and two other ’persons, which borrowed money from the bank in the name of two others, it was error to admit evidence of transactions after the offense tending to show the existence of a partnership at that time, where it appeared that the subsequent transactions were entered into independent of the partnership alleged in the indictment, and were in no way related to it.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 12¿-124J
    2. Criminal Law <&wkey;673(2) — Instructions— Limiting Effect of Evidence.
    Where such evidence was admitted, the court should 'have limited it to its effect as tending to show that by reason of the subsequent transactions defendant and the others were partners in the original transaction declared on in (he indictment.
    [Ed. Note.- — For other cases, see Criminal Law, Cent. Dig. § 1874.]
    3. Criminal Law &wkey;>677 — Withdrawal of Evidence.
    Permitting the state to withdraw evidence as to what took place at the trial of a civil case involving the matter for which accused was being prosecuted, and in which he was successful, was improper, regardless of whether such evidence was introduced by the state or elicited by accused on cross-examination of the state’s witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1605.]
    4. Banks and Banking &wkey;>62 — Ofeenses by Officers — Instructions.
    In the prosecution of a state bank president for unlawfully borrowing money from the bank through being a secret partner in the firm to which the loan was made,, it was error to instruct that the jury should convict accused if they found he was president of the bank and became unlawfully indebted to it, without instructing that he must have become indebted to the bank by means of the partnership alleged in the indictment.
    [Ed. Note. — For other eases, see Banks and Banking, Cent. Dig. §§ 122-124.]
    5. Criminal Law <&wkey;813 — Abstract Instructions — Partnership.
    In such case, it was error to charge on the law of partnership without applying such law to the facts of the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1979.]

      8. CRIMINAL Raw <&wkey;1172(l) — Ground for Reversal — Instructions.
    Error in the giving of an instruction in a case wherein accused was convicted required a reversal, where it was speculative as to what the verdict would have been under a correct instruction.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154.]
    7. Criminal Law <&wkey;1173(2) — Prejudicial Err or — Instructions .
    Where, in the prosecution of a state bank president for unlawfully borrowing money from the bank through a partnership of which he was a secret member, the evidence was conflicting as to the existence of the partnership, failure to instruct that defendant should be acquitted, unless the jui-y found that the partnership existed, was fatal error.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3165.]
    8. Banks and Banking <&wkey;62 — Offenses by Officers — Loan to Partnership — Sufficiency of Evidence.
    Evidence in such ease, held insufficient to show that defendant was a partner, and through the .partnership became indebted to the bank.
    [Ed. Note. — Por other cases, see Banks and Banking, Cent. Dig. §§ 122-124.]
    On Motion for Rehearing.
    9. Banks and Banking &wkey;>62 — Offenses by Officers — Loans—Indictment.
    An indictment charging that defendant was president and member of the board of directors of state bank, and that as such officer he became indebted to the bank in a certain sum without the consent of the majority of the board of directors and without having the matter duly registered or inscribed on the minutes of the bank, sufficiently charged defendant in a. general way with becoming indebted to the bank in a specified sum, but did not authorize the admission of evidence of transactions showing defendant’s indirect liability to the bank through secret membership in a firm to which the bank made a loan.
    [Ed. Note. — For other cases, see Banks and Banking, Cent. Dig. §§ 122-124.]
    Appeal from District Court, Potter County ; H. L. Umphres, Judge.
    Mike C. Le Master was convicted of unlawfully becoming indebted to a state bank of which he was president, and appeals.
    Reversed and remanded, and rehearing 'denied.
    A. A. Lumpkin, of Amarillo, and Cooper & Merrill, of Houston, for appellant. Martin, Kinder, Russell & Zimmermann, of Plain-view, and C. 0. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of becoming indebted to a state bank, of which he was president, in the sum of $8,000.

The first count in the indictment sets out the particulars of the transaction relied upon by the state, but this count was discarded by the court in submitting the case to the jury, and he submitted only the second count, omitting the third count. The count submitted charged that appellant was duly elected, qualified, and acting president, and a member of tbe board of directors of the First State Bank of Amarillo, a banking corporation theretofore incorporated and engaged in the business as a state bank in the city of Amarillo under the authority of the laws of the state, and as said officer he became indebted to the bank in the sum of $8,000, without the consent of the majority of the board of directors, and without having the matter drily registered or inscribed upon the minutes of the bank.

The indictment is attacked in that it fails to apprise the defendant of the nature and circumstances of the case and wherein he had violated the law. I-Ie invokes the statutory rule, which is settled, that everything necessary to-be proved must be alleged in tbe indictment. The writer is of opinion this indictment is too general and does not specifically notify the defendant of the transaction for which he is to be tried, and that the only allegation in the submitted count is of a very ■general nature and to the effect that he became indebted to tbe bank in tbe sum of $8,-000 without proper authority from the board of directors. The writer is of opinion, without going into a discussion at any length of the matter, that the count submitted to the jury is not, within the contemplation of the law, sufficient. The general allegation that appellant had become indebted to the bank in the sum of $8,000 is too general. There is a want of particularity about it, and it does not inform the- defendant of what transaction he is changed. There is nothing to describe the manner of indebtedness, or how it came about, so as to notify defendant of the matters and transactions that he was to meet by the proof. The first count set out particularly these different matters and gave appellant notice of how and when and the circumstances attending the indebtedness, and how it came about, but the court did not submit this to the jury. This much is said in a general way.

It will be noticed upon investigation of the case that all the facts to be relied upon by the state were known at the time the indictment was presented, and as to how the indebtedness was created, if there was any. The facts in this connection, as relied upon by the state, were made through the testimony of an accomplice, McSpadden. His testimony, substantially, is that Morris came and notified him of the fact that he could buy an optional cattle contract, the cattle being in Arizona; that he thought this option could be bought at $5,000, and if he had the money the trade could be made and profit made out of it by selling this contract for an enhanced value to other parties. I-Iis object in calling McSpadden was that McSpadden might enable him in some way to get the money. They discussed it, and Mefepadden, not having thfe money, suggested they see appellant, who was president of the State Amarillo Bank, and get him to furnish the money. Appellant was called, and McSpadden’s testimony is to the effect that after discussing it appellant agreed to furnish the money; Morris and MeSpadden signing the note at the bant for $5,000. There was something said to the effect that it was not probable that the option could be bought at $5,000; that it might take more money. MeSpadden further testified that appellant, Morris, and himself agreed that Morris and MeSpadden were to sign a note to the bank and have the money transferred to their credit, and that appellant was to be a partner in the profits and maybe losses, but his name not to be known in the matter, and in this way that appellant became a partner in the purchase of the cattle option contract. He also testified that there was no other cattle contract, in contemplation or discussed between them at the time. His language was:

“Yes, sir;*it was agreed that Mike C. Le Master was to advance the money on the condition that I went along and used what influence I possessed to keep Morris from getting drunk, and Gus agreed not to get drunk any more, and straighten up. There was nothing said at that time about any other transaction. We were to do the best we could. We did not know exactly how much money it would take, but we were to let Mr. Le Master know. We wanted to get an option on the cattle for spring delivery and then sell the option. The agreement was that Mir. Le Master was to advance the money to be paid as a forfeit on the cattle and Morris and myself were to go out there and get a contract and purchase them and sell the contract.” ■

This occurred, on the 26th day of December, and on the 27th a note was executed by Morris and MeSpadden to the bank, appellant’s name not appearing in any of these matters. Upon signing the note Morris and MeSpadden left Amarillo and went to El Paso. They there got in touch with the owners of the cattle and bought the option. The owners of the cattle, however, required $S,000 instead of $5,000. By wire appellant was notified of that fact. He took the Morris and MeSpadden note and wrote above the 5,000 3,000. The intention it seems was to make the note for $8,000 instead of $5,000. The deal was made, and in three or four days the option was transferred at a profit of considerable amount and closed out, and Morris and MeSpadden came back to Amarillo and deposited the money in the state bank at Amarillo, and on the 6th of January took up and paid off the note. Appellant was not in Amarillo at the time, hut was in Ft. Worth. He knew nothing about tbe payment of the note until later information was conveyed to him. Morris testified in many respects as did MeSpadden, tout he denied that Le Master had or was to have any interest in the option contract, and was in no way connected with the profits or losses. In fact, he was in no sense, or in no way interested in the contract, nor was he to receive any profits, dividends, or pay any losses. Appellant testified in his own behalf as did Morris. After returning to Amarillo and taking up the note MeSpadden and Morris, without the knowledge of appellant, went to New Mexico with a view of purchasing other cattle. Appellant had nothing to do with this and knew nothing of this matter.

There were other subsequent cattle deals by MeSpadden and Morris wmch the state undertook to connect appellant with by McSpadden’s testimony. Both Morris and appellant denied that there was any partnership. There was evidence introduced by the state to show these subsequent transactions over the protest and objection of appellant. We are of opinion these objections were well taken. The court also failed to limit this testimony. Having admitted the testimony, the court should have limited it. It was not in reference to the original case and could not be, and if it was introduced for any purpose it was to show that by reason of the subsequent transactions between the parties that they were partners in the original transaction declared upon in the indictment. As before stated, we are of opinion these matters should not have gone before the jury, but having been permitted to be introduced, the court should have limited them to their proper office in his charge. The state’s testimony as well as that for the defendant all agree that if appellant had any connection with any of these transactions it was the one based on the note, and the sum finally drawn from the bank of $8,000, which was paid back within ten days by Morris and MeSpadden. MeSpadden says there was no other transaction in contemplation or under discussion. Morris uses the same language and testifies to the same thing, so- does appellant. So it would be evident that subsequent transactions if entered into independent or disconnected with the first, not growing out of or related to it in any way, could not come into the case as testimony on the question of partnership in the first transaction.

There was nothing said, as MeSpadden, Morris, and Le Master all testify, as to any other trade either then or in contemplation for future dealings. The fact that later they may have made other trades, or that appellant may have become interested in later transactions, could not afford testimony proving a partnership in a single transaction which.begun and ended with itself. These latter matters had no relation to or bearing upon the case; they did not serve to identify or develop the case; were not res geste, nor could possibly reach the question of system. The matter is here dealt with generally without going into details as shown toy defendant’s bills of exception with reference to these matters. There are several of these matters, all of which upon another trial should be excluded.

The state introduced Mr. Mood as a witness, and was proving by him some matters that occurred on the trial of a civil case in which he took down the testimony as stenographer. It seems they were seeking to prove the testimony of appellant while testifying in his own behalf on the trial of the civil case. There are several pages of these questions and answers set out in the bill so as to make it clear and plain. It developed in his testimony that on the trial of the civil casé appellant won; that the jury found a verdict in his favor. When the testimony of Mr. Mood was complete, or they had become satisfied about it, the state moved to exclude all his testimony from the consideration of the jury. The appellant excepted. The state’s counsel put their motion to withdraw the testimony on the ground that they did not purpose to introduce the record in the civil case. These matters are generally stated, and not the details. We are of opinion that the objections of the defend: ant were well taken. The testimony should have remained before the jury. Among the early cases on this question in Texas is Speight v. State, 1 Tex. App. 552. The first section of the syllabus of that case sufficiently states the question:

“If the accused elicits testimony adverse to himself, he must take the consequences; and he is not entitled to have it withdrawn from the jury because part of the same proof, when offered by the prosecution, had previously, on his objection, been excluded by the court.”

In that case the defendant moved to exclude testimony introduced by himself that he thought adverse to him. The state would occupy no better position under the same circumstances than would appellant. , The testimony, as said in the Speight Case, if illegal at all, was his own testimony, and we opine he ought to be held to take the consequences, and could not exclude it simply because it was found to toe unfavorable to bis case. In Moore v. State, 6 Tex. App. 563, the question came again. The headnote of that opinion is as follows:

“If the defendant elicits testimony adverse to himself, he must abide the consequences; and that a state’s witness, upon cross-examination by the defendant, testified to a confession made after arrest, is not cause for a new trial, as having improperly gone to the jury.”

The doctrine was approved in Allen v. State, 8 Tex. App. 67, and Robins v. State, 9 Tex. App. 671. In the case of McDade v. State, 27 Tex. App. 641, 11 S. W. 672, 11 Am. St. Rep. 216, the question again came. At page 689 of that report (11 S. W. 675) the court said:

“In the seventh assignment of error it is complained that ‘tlie court failed to instruct the jury that the declaration of Allehin to Felker that threats had been made against him by defendant was not any evidence that such threats were made, and that they should not consider such' statement as a part of the evidence for that purpose, when it was expressly requested so to charge by defendant.’ This evidence was drawn out by defendant upon the direct examination of his witness Felker, and neither the prosecution nor the court was responsible for it. If the defendant elicits testimony adverse to himself he must abide the consequences”— citing Speight v. State, 1 Tex. App. 551, and Moore v. State, 6 Tex. App. 562.

The state having introduced. Mr. Mood as a witness, and his testimony being introduced without objection from the defendant, the state could not, because the testimony was somewhat damaging to its case, withdraw it from the jury. The state introduced it and could not withdraw it over objection of appellant. The above cited cases seem to settle that question.

There are exceptions to the second subdivision of the charge on various grounds. This subdivision limits the jury to the second count, and charged if the jury should find appellant was an officer duly elected, qualified, and acting president and a member of the board of directors of the state bank, and that the bank was incorporated, etc., and be became indebted to that bank in the sum of §8,000 without proper authority from the board of directors, they should convict him. It will be noticed in this connection that this charge submits the fact that he was president and one of the board of directors. The indictment, while it mentioned the fact that he was an officer and member of the hoard of directors, it did not attempt to charge him with being guilty of violating the state law as a director, but only as president or acting president. The. president cannot borrow any amount of money from the bank without proper authority. The indictment did not undertake to charge any matter that would make him criminally liable as a director. He was charged as the president of the bank, and not asi a member of the board, of directors. If he was sought to be convicted as a director, then the charge should have specifically brought that matter to the attention of the jury.

It will be noticed that this charge does not undertake anywhere to inform the jury as to the relation of appellant to the amount of money or the circumstances by which he could have possibly been indebted to the hank. All the testimony and the indictment excludes tlie idea that his name was on the bank books-The proof all shows that it was not, and that there was no contract and no evidence in the bank books, records, or papers that his name was in any way connected with any indebtedness to the bank. The only way by which it was sought to hold him liable was through the testimony of MeSpadden that he was a secret partner in the profits and losses that might arise in the option contract which Morris and MeSpadden accomplished and for which the bank is supposed to have furnished the $8,000. In order, therefore, to hold appellant guilty, the charge should have conformed to the facts, and in order to hold him the state would have to show that he was guilty under the circumstances detailed by the state’s witness as partner. In other words, in order to convict appellant the jury should have been instructed that they would have to find that appellant became indebted to the bank by means of this partnership matter about which McSpadden testified. This was the state’s case, and it was all the state had or put into tha trial. In this same connection it may be well enough to notice that section 3 of the charge is a general statement of the law of partnership as understood by the court in giving his charge, and it reads as follows:

“A partnership is formed by two or more persons placing their money, effects, labor and skill or some one or all of them in business with the purpose and -intention of dividing the profit and bearing the loss in certain proportions and may be made and entered into either by express agreement, oral or written, of those forming the partnership, or it can result from the conduct of the parties in relation to the business. Those forming the partnership are partners. When a partnership is formed each individual partner in relation to partnership business in law binds himself and each of the other members of th« partnership jointly and severally for any partnership obligations made in furtherance of the partnership enterprise and within the scope of the partnership business.”

This is all the charge with reference to partnership. It will be seen that it has no reference to and is not connected back with the other charge; nor does the other charge refer to partnership, nor is the jury charged that if appellant was a partner within the terms of the law with McSpadden and Morris, and under that partnership there was or could be an indebtedness created for which appellant would be responsible, they might convict. This definition of partnership is thrown into it in a general way without any application of the rule of partnership to the facts in the case, or facts of the case to the partnership. In the second clause of the charge which submits the law for conviction the partnership is not mentioned. Under the facts it was all the state had upon which to predicate a conviction. In the charge on partnership it does not inform the jury that if appellant connected himself with this indebtedness by means of this partnership, and was responsible under the terms of the contract by reason of this partnership, that he might be liable for the indebtedness, but instructs the jury to convict for the indebtedness in the second clause, and gives a general definition without any application of the law to the facts of partnership. If appellant vras guilty at all it was under McSpadden’s testimony to the effect that he agreed to divide the profits and losses and carry the partners under the contract, and that he did furnish the money from the bank. The state admits error in the charge on partnership as given, but asserts the error was favorable to appellant. It was error, and we think harmful. The error is conceded; the verdict was guilty. 'Wihat may have been the verdict under a correct charge is speculative, but it is' not speculative that he was found guilty.

There is another phase to this charge that is fatal. McSpadden swore to this partnership as set out in the early part of the opinion. Morris and appellant denied it emphatically. There was an issue sharply drawn by this testimony as to whether this partnership existed or not. The bulk and the weight of the testimony was that the partnership did not exist. The jury so found by their verdict in the civil proceeding and exonerated appellant as partner and found in his favor in the suit against himself and Morris by McSpadden. This was shown by the testimony of Mood. Now the converse of the proposition, had the partnership been properly charged, was if the jury should find there was no partnership existing between these parties at the time, they should find in his favor and acquit him. Such omission is fatal error.

It is contended that the evidence is not sufficient to show that appellant was a partner, and that through the partnership became indebted to the bank. The writer is of opinion that this proposition is correct. McSpad-den testified, and he alone, that appellant was to be connected with the profits or losses, and Morris testified positively that such was not the case, and that hé and McSpadden alone were responsible, and that he was to get two-thirds of the profits and McSpadden one-third, and that appellant had nothing to do with it. McSpadden testified they were to be equal partners', each getting a third. There were some telegrams passing between the parties with reference to this $8,000 option contract introduced by the state, but these did not show that a partnership existed. It was with reference to the fact that the $5,000 first agreed upon and mentioned in the note was not sufficient, and appellant agreed to furnish the extra $3,000 from the bank, and later wrote it in the note. The note was payable to the bank, and appellant was in no way concerned with it, and if he was connected in any manner with it it was by reason of McSpadden’s testimony, which appellant and Morris both denied. As it occurs to the writer, there is no testimony which supports or corroborates McSpadden in his statement, If, however, the state should further prosecute, the testimony should be limited to the transaction about which the witnesses testified and not extend it to subsequent contracts in no way connected with or related to the one under investigation.

The judgment is reversed, and the cause' remanded.

On Motion for Rehearing.

On a former day of the term the judgment was reversed and the cause remanded. The state contends in a motion for rehearing that the court was in error in holding that the indictment was not valid. It was stated that the general allegation that appellant had become indebted to the bank in the sum of $8,000 was not specific enough and .entirely too general; that it was wanting in particularity, and failed to inform the defendant of the transaction, for which he was to be tried. Tbe writer, upon further investigation, still adheres to his original views. The majority, however, do not agree with him. Under the view of the majority the former opinion will be modified and the indictment held sufficient to charge appellant in a general way with becoming indebted to the bank in the specified sum. The indictment contained three counts. The first set out the facts attending the transactions by which it was sought to connect appellant with violating the banking law, he being president of the bank. That count, however, was not submitted to the jury by the court, and passed out of the case. The second count was submitted in which the general allegation was made that appellant became indebted to the bank of which he was president. •Under these allegations the state would be required to prove that appellant had become directly indebted to the bank, and that proof of the matters and facts set up by the state in its evidence would not meet the count upon which the conviction was obtained, which evidence was to the effect that appellant and McSpadden and Morris entered into an agreement by which they were to buy cattle and the bank furnish the money, predicated upon a note given by McSpadden and Morris, and the money transferred on the books of the bank to their credit, and that appellant would be a partner in the profits and losses of the cattle transaction for which the note was given to secure funds in payment of the cattle. Appellant’s name does not appear anywhere either in the note or on the bank books, and on the face of the transaction he is not directly shown to be connected with any of those matters. In other words, it was a secret partnership, if it existed. This was perhaps the most serious question in the case so far as the evidence was concerned. So following the views of the majority, the count will be held sufficient to charge an offense, but not to admit evidence of the transactions showing an indirect liability as sought by the state; that this would be a variance between the allegation in the count submitted and the evidence, and therefore the evidence did not support the finding of the jury under the count and the charge submitting that count.

In regard to what was said in the original opinion with reference to a bill of exceptions which contains matters and things set out through the witness Mood, the state contends that the opinion was in error in holding that state’s counsel was responsible for withdrawing all the testimony of Mood from the jury. The contention is that the state did not withdraw the statements of Mood on cross-examination by appellant's counsel to the effect that appellant had won the civil suit. Strictly and technically speaking this contention may be correct. The bill in regard to this matter shows that when Mood was placed upon the stand and the various questions asked and answers elicited, he was then passed to appellant’s counsel for cross-examination, and, among other things, it was elicited from him that appellant had won the’civil suit in which Mc-Spadden sued Morris and himself for settlement of alleged partnership matters, which involved the $8,000 matter. State’s counsel objected to this cross-examination as to the matters elicited from Mood, but the court overruled the objection upon the ground that the state had drawn out the matter, and this was a legitimate cross-examination. When this occurred the bill of exceptions recites that;

“Thereupon the state rested, an'd stated they desired to consult a moment, and within a few minutes returned to the court, and through their private prosecutor, Mr. Martin, stated to the court, ‘We are not going to introduce any of the record, and we ask that the court strike out the testimony of Mr. Mood in regard to it.’ (The record referred to being the transcript of what purported to be the statement of facts ill the case of W. A. McSpadden v. R. A. Morris et al., in which the state’s counsel had attempted to prove up by A. M. Mood for the purpose of offering the same and parts thereof to impeach the defendant as a witness.) The court then stated, ‘What part of the record do you have reference to?’ Mr. Martin stated in reply to such question, ‘All of Mr. Mood’s testimony identifying the record, since we are not offering any of the record, that evidence would serve, no purpose. We do not intend to offer the record, and we would like to have this testimony stricken from the record, since it does not tend to prove any issue in this case.’ ”

Thereupon defendant’s counsel objected to the withdrawal of any of the. testimony by the state for the reason they had offered the same, and when it was proved harmful to them they desired to withdraw it, and that it was material and beneficial to the defendant, and that they had no power to withdraw it when they had offered it themselves, and they considered it harmful to then be permitted to withdraw it. The court, not specifically ruling on the objection, turned to the jury and instructed them as follows:

“I will strike out and instruct the jury not to consider the testimony of Mr. Mood.”

In the former opinion the writer was under the impression that, legally speaking, state’s counsel were responsible for being really the moving parties in getting the matter before the jury as well as to its final withdrawal or exclusion after putting it in before the jury; that it was too late for the state to withdraw it after cross-examination of the witness in reference to the matter they had drawn out; and that their motion, had it been sustained, would practically have operated to withdraw all the testimony of the witness Mood, whether it was direct or cross-examination. If the writer was in error about this, then counsel for the state may not have been altogether responsible for the withdrawal of Mood’s testimony favorable to the defendant. But the matter was so intermingled — the direct and cross examination taken — with the remarks of the court it occurred to the writer that the ef-feet of the state’s motion was to withdraw all the testimony, especially in view of the fact that this motion was not made until after Mood developed the fact that appellant had won the civil suit. This testimony seems to have been introduced by the state for the purpose of laying some predicate with reference to the case and the testimony of defendant in the civil suit, but when Mood testified to the fact that appellant had been eliminated from that record by the verdict of the jury, counsel moved to exclude or withdraw the testimony from the jury. State’s counsel insist strenuously that they did not undertake to withdraw the testimony introduced on cross-examination, and that they were only undertaking to withdraw that which they introduced. Without going into any detail about the matter, or any discussion, we place it as the record does, so that it will be fully understood and its effect and result from the whole bill of exceptions may not be unjust to either side. The result, however, would be the same. This testimony was withdrawn from the jury, and under the circumstances it should not have been withdrawn. It is deemed unnecessary to discuss the other matters.

Finding no reason why the motion for rehearing should be granted, it is ordered that said motion be overruled.
      tg^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ÉtcnFor other case? see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    SIMPSON v. STATE.
    (No. 4478.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Criminal Law c&wkey;825(4) — Instructions— Reasonable Doubt.
    In trial for cattle theft, where, although the court’s charge might have expressed the matter of reasonable doubt in clearer terms, it concluded with instruction to give defendant the benefit of reasonable doubt as to each of the matters referred to, and court further instructed that accused' was presumed innocent until his guilt was established beyond a reasonable doubt, this was sufficient, where accused presented no special charge embodying the matter in different language.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005.]
    2. Ceiminal Law <&wkey;599 — Continuance.
    Denial of accused’s motion to withdraw his announcement of ready for trial and continue the case that he might obtain a pardon for witness whose testimony was excluded on the ground he was a convict, because accused was surprised at being informed Ms witness was a convict, was not error under Code Cr. Proc. 1916, art. 616, authorizing such withdrawal when surprise to accused satisfactorily appears; such witness’ testimony being of doubtful effect and he having been released from the penitentiary some 15 years before the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1333, 1334.]
    On Motion for Rehearing.
    3. Criminal Law <s&wkey;372(5) — Evidence of Other Offenses — Cattle Theft.
    In trial for cattle theft, where accused admitted his connection with the transaction in slaughtering the animal and participating in the sale of the hide and meat, and also participating in other similar transactions, but maintained that he was innocent of the knowledge that the cattle had neen stolen, testimony of an accomplice that he and accused were engaged in the occupation of stealing cattle and butchering them, and that the cattle involved in other offenses were stolen by him and accused, both participating in the taking, was admissible to show intent and system or course of dealings.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 833, 834.]
    4. Criminal Law <&wkey;69(5) — Principal and Accomplice.
    If a calf was stolen when accused was not bodily present, but pursuant to a conspiracy in which he performed a part in furtherance of the common design, accused would be liable as principal under Vernon’s Ann. Pen. Code 1916, art. 74, as to principals, and not an accomplice 'under article 79, as to accomplices.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 81.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    J. N. Simpson was convicted of cattle theft, and appeals.
    Affirmed.
    O. W. Howth and F. G. Vaughn, both of Beaumont, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for cattle theft, and his punishment was fixed at three years’ confinement in the penitentiary.

The evidence shows that the owner of the calf in question turned it out of a barnyard at night, and the next day its hide and a part of the meat were sold by appellant. The state’s theory and testimony was to the effect that the appellant stole the calf and brought it to the residence of P. J. Hoffman, and that he and Hoffman killed, skinned, and butchered it. Appellant’s theory and testimony was that he was an employé of Hoffman, who was in the butchering business; that he boarded at Hoffman’s house, and that Hoffman brought the calf to his own premises, and that appellant assisted in butchering it without any knowledge of it having been stolen, and that he sold the hide and the meat in the course of his emplojunent as a servant of Hoffman; that he thought that Hoffman was having butchering done at night in violation of the city ordinance; but that he did not know that Hoffman was violating any other law. Hoffman was used as a state’s witness apparently under an understanding that he would not be punished for the theft. He testified, in effect, that he and appellant were partners in tne occupation of stealing and butchering cattle, and that their method was to steal and butcher them at night and sell the hides and meat, this being done some time by one and some time by the other. He testified that the particular animal in question was stolen by appellant and brought to his (Hoffman’s) house and butchered by them both. He also testified to a number of thefts of cattle dealt with in a similar manner. There was also testimony of the sale of hides on various occasions by the appellant. Mrs. Hoffman testified that her husband was at home on the night that this animal was stolen, and that she did not go out, but late in the night heard appellant call her husband to come and help him butcher the animal. There was some evidence that appellant claimed to have had a bill of sale to the animal gotten from a negro, and I-Ioffman testified that this bill of sale was written by appellant, and that the story of tbe purchase from the negro was fabricated. There was some testimony that appellant sought to bribe a witness to swear to facts which would corroborate the theory that he had purchased the animal from the negro. All of .this was denied by appellant.

The court charged the jury on theft and the converse, and submitted appellant’s defenses, and in doing so used substantially the following language:

“If you believe the said animal was stolen from Mrs. J. A. Godwin, yet if you believe that some other person than the defendant committed such theft, and that the defendant did not participate thei'ein, and did not by word or by act give aid or encouragement in the commission of such theft, if such theft was committed, or if you shall believe that the said one head of cattle was stolen whether or not he was employed-by P. J. Hoffman, yet if you believe the defendant did not know that the said animal was stolen, then in either of the above events the defendant would not be guilty of any offense, and if you shall so find, or if you have a reasonable doubt thereof, you will acquit him.”

The court also Instructed that a conviction could not be had on the'testimony of Hoffman without sufficient corroboration. The court also gave a charge that, if appellant made an explanation of his possession of the animal which was reasonable, they would acquit, unless it was disproved, and instructed that the proof of other offenses was limited to the “intent with which, or the manner of system, in which the defendant acted with respect to the property for the theft of which he is now on trial, or as bearing upon, if in your mind it does bear upon, the credibility of the defendant as a witness”; also submitted the law of suspended sentence.

The appellant contends that the court’s charge above quoted submitting his defenses and that submitting the converse of the state’s case did not give him the benefit of the law of reasonable doubt. It is possible that this matter might have been expressed in clearer terms. However, no special charge embodying the matter in different language was presented, and the charge did conclude with instructions to give the defendant the benefit of the reasonable doubt as to each of the matters referred to in the charge. And this under the circumstances has been held sufficient in the cases of Rice v. State, 49 Tex. Cr. R. 582, 94 S. W. 1024; Adams v. State, 48 Tex. Cr. R. 456, 93 S. W. 116; Scott v. State, 46 Tex. Cr. R. 539, 81 S. W. 294, 108 Am. St. Rep. 1032. The court also in another paragraph instructed the jury that appellant was presumed to be innocent until his guilt was established by legal evidence beyond a rea-, sonable doubt, and that in case they had a reasonable doubt of his guilt to acquit him.

The error is assigned on account of the admission by the court of evidence of other offenses, and also .of failure of the court to submit to the jury the question as to whether the appellant was an accomplice, and to direct his acquittal in the event they found him to be an accomplice. The evidence of other offenses complained of were thefts of cattle on several occasions between March 20, 1916, and July 4, 1916. The evidence of these offenses came from the accomplice, Hoffman, and was to the effect that he and, appellant were engaged in the occupation of stealing cattle and butchering them and that the cattle involved in the other offenses were stolen by the witness and appellant, both participating in the taking, and that they were dealt with in a manner similar to that in which the calf upon the theft of which the indictment was founded was handled. The general rule that evidence of other offenses is not admissible is modified by exceptions that are well defined in our decisions. One of these exceptions is that, where the intent of the party charged is an issue, other similar offenses committed about the same time may become admissible upon that issue. In tbis case appellant’s intent becomes an issue from his testimony declaring that in his dealing with the animal in question he had no knowledge that it was stolen and was but an innocent agent of Hoffman. He admits his connection with it at the time it was slaughtered and his participation in the sale of the hide and the meat, and also in the participation of other similar transactions, maintaining throughout his contention of innocence of knowledge that the cattle with which he was dealing were stolen. The testimony of Hoffman was to the effect that appellant was cognizant of the theft of the animal in question and in fact was the actual taker of it, and that in dealing with it it was but one of a series of thefts conducted in the same manner and upon the same plan by virtue of a conspiracy to which appellant was a party. From this testimony the inference could be reasonably drawn that there existed an understanding between the appellant and Hoffman that the method by which they would pursue the occupation in which they were engaged would be for one or the other, or both, to steal cattle at night and butcher them at night, sell the hides and the meat, and divide the proceeds of such sales. Where the evidence raises such an issue, and there is evidence that at the actual taking of the animal the appellant was not present, other transactions of a similar nature may be proved to establish a system or course of dealing the effect of which would be to make the parties thus acting together principals in the commission of the offense. Among the eases illustrating the rule pre-

vailing in this state upon this subject is that of Mason v. State, 31 Tex. Cr. R. 311, 20 S. W. 566, from, which we take the following quotation:

“Again, it is well settled that, where it is proved that the persons charged by their act ■pursue the same object or purpose, one performing one part and another some other part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object; and under our statute such acting together woiild make all principal offenders, whether bodily present or not at the place of the offense. And they are all principal offenders when acting and together, as long as any portion of the object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Smith’s Case, 21 Tex. App. 108 [17 S. W. 552]; Willey v. State, 22 Tex. App. 408 [3 S. W. 570]; Miller v. State, 23 Tex. App. 38 [3 S. W. 573]; Collins v. State, 24 Tex. App. 141 [5 S. W. 848]; McFadden v. State, 28 Tex. App. 241 [14 S. W. 128].”

Under these authorities we think the court did not err in permitting the state to introduce evidence 'of other thefts. The acts which make one an accomplice are performed before the crime is committed. P. C. art. 79. We fail to find that in the record which requires the submission of that issue. There was evidence that he took the animal. If he did so, he was not an accomplice. There was evidence that he was not present when the animal was taken, but took part only in killing, butchering, and selling. These were acts done after the actual taking, and would not make him an accomplice. He claimed that his connection with the matter was that of an innocent employé or agent of Hoffman. This was passed on by the jury against appellant in response to a prepared charge. If he and Hoffman were members of a conspiracy the object and design of which was not completed till the cattle they were engaged in stealing were killed, butchered, and the hides and meat sold, and in furtherance of this design in which both performed separate parts to the common deed, they would both be principles and each responsible for the acts of the other in furtherance of its purpose until it was consummated. Vernon’s Penal OÓde, art. 74, and cases cited note 1, p. 37; Smith v. State, 21 Tex. App. 108, 17 S. W. 552, and other cases above mentioned; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45. This principle wras submitted to the jury in rather a meager way, but was sufficient in the absence of a request for a more specific application of the law of principals.

An exception was reserved to the refusal of the court to permit the appellant to withdraw his announcement of ready for trial and continue the ease in order that he might obtain a pardon for a witness whose testimony was excluded on the ground that he was a convict. The allegation in the motion is that appellant was surprised at the knowledge or information that the witness was a convict. It seems that the witness had been convicted of a felony and released from the penitentiary some 15 years before the trial. Article 616, O. C. P., authorizes a withdrawal of announcement “when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.” We could hardly say that the court was in error in holding that the appellant did not show such a condition as made it incumbent upon the court under this provision of the Code to grant the withdrawal on the ground of surprise (Hippie v. State, 191 S. AV. 1150), nor do we think that the testimony of this witness was essential to a fair trial. Its purpose was to discredit Hoffman and his wife. AAihen his testimony given in the presence of the court and in the absence of the jury is examined, its effecting this purpose is made doubtful. It was not possible for the appellant to show that a pardon would be issued to the witness so as to make his testimony available by a continuance of the case. More than ten days elapsed between the time of the trial and the judgment on motion for new trial. It was not then shown that any pardon had been obtained.

Without discussing the other bills and assignments, we have carefully examined and considered them all, and find in them no reversible error, and our conclusion is that the judgment of the lower court should be affirmed; and it is so ordered.

On Motion for Rehearing.

In quite an able brief and argument appellant through his counsel, attacks the conclusion reached in the original opinion that the trial court did not err in admitting the evidence of other offenses therein described, and in the course of the discussion reference to many cases in which this court has decided that under the particular facts involved proof of other offenses was not admissible and in which the principles' upon which they are admitted are excluded in the given case are laid down. Quoting from one of these, Bink v. State, 48 Tex. Cr. R. 598, 89 S. W. 1076, we take the following:

“While proof of extraneous crimes can be made to establish system or intent, still, before such crimes can be admitted, there must bo some dispute as to the identity of appellant, or the system, or some controversy as to his intent.”

In this, as in many eases the difficulty is not in the ascertainment of the rule, but its application. If in this case there was an issue or controversy as to the intent of the appellant, and the other offenses,- by disclosing a system of conduct, tend to solve the controversy, they were within the rule admitting such evidence. That appellant assisted iu butchering ■ the animal in question at nighttime and took part in the disposition of the meat and the hide of the animal are not disputed questions. Whether he actually took the animal or was present at its taking is disputed, the state’s testimony showing that he did do it, his1 testimony denying it. He claimed to have been the employé of Hoffman and to have participated in butchering the animal and disposing of the meat and hide in the course of his employment without knowledge of the theft or intent to participate' therein.

The state’s testimony pointed to an agreement between Hoffman and appellant to engage in the business of stealing cattle, butchering them at Hoffman’s house, selling the hides and the meat, and dividing the proceeds. There was evidence that on various occasions appellant had taken part in butchering cattle at Hoffman’s house at nighttime and had sold the hides and the meat. The state’s theory was that the animal in question was stolen pursuant to such a conspiracy, and that the acts proved showing appellant took part in butchering cattle at Hoffman’s house at night, and selling hides and beef on vari-bus previous occasions, were the parts performed by appellant in carrying forward the object of the conspiracy to its ultimate purpose. To sustain this theory and show ap. pellant’s intent proof of the other thefts of cattle dealt with in the same manner as the one in question was, we think, admissible in evidence. Illustrative cases are Camarillo v. State, 68 S. W. 795; White v. State, 45 Tex. Cr. R. 602, 79 S. W. 523; Petty v. State, 59 Tex. Cr. R. 591, 129 S. W. 615.

By typographical error the original opinion described the charge submitting one of appellant’s defenses as a “specially prepared charge.” It should have said “carefully prepared charge.” It is quoted in the opinion and told the jury that although the animal was stolen, appellant’s acquittal should follow if he was ignorant of the theft, whether he was or was not employed by Hoffman. In insisting that the evidence raised an issue of accomplice, and not of principal, appellant reviews decisions noting the distinction between principal and accomplice, and stresses the point that the theft is completed upon the original taking, contending that, there being evidence that appellant was absent at the time of the taking, the court was wrong in concluding that he might nevertheless be a principal. This conclusion of the court is not a departure, but a following of the rulings of this court, as is well illustrated in Smith’s Case, 21 Tex. App. 120, 17 S. W. 552, wherein M. M. Smith was on trial and his conviction sustained, on a state of facts showing that while M. M. Smith was at home in Parker county 40 miles distant other parties fraudulently took possession of cattle in Erath county, drove them to another county, and they were subsequently driven by M. M. Smith to Tarrant county for the purpose of sale. M. M. Smith was held as a principal in the original taking of the cattle on the ground that they were taken pursuant to a conspiracy to steal them -and sell them and divide the proceeds ; his part of the conspiracy being to drive the cattle to Tarrant county and sell them after they were taken. In deciding this case the court approved the distinction between principal and accomplice as declared in Cook’s Case, 14 Tex. App. 96, and Bean v. State, 17 Tex. App. 61, and as application of the principle so stated to the facts mentioned cites the Welsh Case, 3 Tex. App. 413, Scales v. State, 7 Tex. App. 361, McKeen v. State, 7 Tex. App. 631, McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726, and Cohea v. State, 9 Tex. App. 173, and concluded with the following language:

“As before stated, evidence in proof of a conspiracy to commit crime will generally, from the nature of the case, be circumstantial. It is not necessary to prove that the defendants came together and actually agreed in terms to have that design and pursue it by common means. If it be proved that defendants 'by their acts pursued the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object (Slough’s Case [C. C.] 5 Fed. 680), and under our statute such acting' together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. State, 4 Tex. App. 492; Heard v. State, 9 Tex. App. 1; Wright v. State, 18 Tex. App. 358), and they are all principals and acting' together as long as any portion or object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Hence, ‘where in larceny it was shown that the conspiracy extended as well to the dividing of the stolen goods as to the theft, what one did between the stealing and the dividing was'deemed good evidence against both.’ 2 Bish. Crim. Proc. 230, citing Scott v. State, 30 Ala. 503. This doctrine is expressly recognized and adopted by us in O’Neal v. State, 14 Tex. App. 582, and the same rule is announced in Allen v. State, 12 Lea (Tenn.) 424.
“Now in applying the law as above stated to the case in hand, if Jim and D'ave Smith were the innocent agents of M. M. .Smith, then M. M. Smith was a principal. If there was a conspiracy between all the parties to commit the theft, the part to be done by Jim and Dave being to take the property, and the part assigned to M. M. Smith being the sale after it was so taken, then all were principal offenders.”

The court’s charge in this case authorizes the conviction under the law of principals, and, after a careful review of the subject in the light of the motion for rehearing and the authorities there cited, we adhere to the conclusion reached in the original opinion that the facts authorized the' conviction of appellant as a principal’, although at the time the animal was actually taken he'was not bodily present, if it was taken in pursuance to a conspiracy in which be performed a part in furtherance of the common design.

The motion is overruled.
      dteoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes