Rix v. State

SIMKINS, Judge. —Appellant was convicted of theft of cattle, and his punishment assessed at two years in the penitentiary. The evidence shows, that appellant attended a party at Gussettville, in Live Oak County, on February 6, 1893, and there met J. J. Galla *357 gher and Charles Gallagher, and made an agreement with them that they should steal a carload of cattle out of Boyd’s pasture and drive them to Beeville, and appellant would at once ship them by the Southern Pacific. Next day Charles Gallagher went with Bix to Beeville to see about cars. Some eighteen days afterwards the brothers, having perfected arrangements, wrote to Bix that they would meet him with the cattle, and on the 26th drove some thirty head, including the cattle alleged to be stolen, to Burk’s windmill; but not meeting Bix, they drove on towards Beeville, and, reaching Koehler & Hildenfeld’s pasture, seven miles from Beeville, they placed the cattle in the pasture, and J. J. Gallagher rode on to Beeville and found that Bix was not in town. The Gallaghers then abandoned the cattle and rode back home. The evidence shows that Bix, who lived in Beeville, left there on the 16th of February, and did not return till the 2nd day of March, when he came with his family. The evidence as to the contract between Bix and the Gallaghers is entirely derived from the testimony of J. J. Gallagher, who testified as to the whole matter. The corroboration lies in the proof that Bix and the Gallaghers were seen in earnest conversation at the party. That next day Bix and one of the Gallaghers rode around in Boyd’s pasture and looked at the cattle, and Bix offered to purchase some of the cattle from the owner, offering a lower price than he would accept; that Bix and Charles Gallagher were next seen riding to Beeville together; that on the night the cattle were driven, witness Terrell met the two Gallaghers in charge of the cattle, who told him they belonged to Bix, and tried to hire him to assist in driving them to the windmill, where they said Bix would meet them. It was further shown, that on the 4th of March, or two days after his return home, appellant came up to one Wash Barker with a letter he said had been written by the Gallaghers about the stolen cattle, remarking, “it •was rather late to have received such a letter.” Witness declined to read it, but advised him to destroy it. It was known then that the cattle were stolen. 1. Appellant complains that the court erred in permitting Dave Odom, sheriff of San Patricio County, to testify, over the objection of defendant, that on the 15th of March, 1893, he had a conversation with defendant, then in jail under a charge other than that for which he was being tried, and immediately thereafter telegraphed to his deputy to arrest Charley Gallagher, and he at once went and arrested both the Gallaghers on a charge of theft of the cattle described in the indictment. This testimony should have been excluded, except so much as appellant himself drew out of the witness, to wit, the fact that upon the same day of the conversation the sheriff telegraphed to his deputy to hold Charles Gallagher till he reached there. The court excluded all conversation between appellant and Odom. *358 2. Tbe court did not err in overruling tbe objection to tbe evidence of Bynum Terrell as to tbe declarations of tbe Gallaghers while driving tbe stolen cattle, for it is shown that a conspiracy bad been formed and tbe parties were carrying it out. ' 3. Appellant further complains that tbe court erred in admitting in evidence a letter written by appellant to Dave Odom, tbe sheriff, after tbe interview in tbe jail, to tbe admission of which appellant duly excepted. There is no question appellant was in jail when tbe letter was written. Not having been warned, no statement, written or verbal, of appellant while in jail, can, under tbe law, be admitted in evidence against him. An examination of tbe letter shows that it is an assertion of bis innocence, but it also contains tbe admission that appellant bad put Sheriff Odom on tbe trail of tbe guilty parties, and bad be not done so they could not have been found out. Tbe evident purpose of introducing tbe letter was to show appellant’s knowledge of and connection with tbe crime. To tbe same end was introduced the fact that Odom conversed with appellant, then in jail, before be arrested tbe Gallaghers. Also, tbe letter of date September, 1893, introduced by tbe State, written by appellant to the district attorney, offering to testify against tbe Gallaghers whenever be was wanted. Tbe court erred in admitting tbe letter to Sheriff Odom. It was a strongly inculpatory fact that be only was able to put tbe sheriff on tbe track of tbe guilty parties, for it tended to corroborate tbe statement of tbe witness Gallagher; but tbe evidence to prove such a fact must be legal and admissible. Tbe court should not have permitted proof of what tbe sheriff did after conversing with appellant, nor should be have permitted the letter to be introduced. 4. But a serious question is presented in appellant’s sixth and seventh assignments of error. Tbe evidence shows that appellant, if guilty, is an accomplice, and not a principal in tbe crime. An accomplice is one who is not present at tbe commission of an offense, but who, before the act is done, advises, commands, or encourages another to commit tbe offense, or who agrees with tbe principal offender to aid him in committing the offense, though he may not have given such aid. Penal Code, art. 79; Bean’s case, 17 Texas Crim. App., 61; Phillips’ case, Id., 169; Smith’s case, 21 Texas Crim. App., 107; Watson’s case, Id., 598. Tbe evidence shows, that after making tbe agreement to meet tbe Gallaghers with tbe stolen cattle at Burk’s windmill and drive them to Beeville, and ship them ou tbe Southern Pacific on cars previously ordered, be did not in fact do so; nor is it shown that any arrangements were made for cars, but on tbe contrary, ten days after the time of tbe alleged agreement, be left tbe town of Beeville with bis family and remained in a different county until tbe 2nd of March, when be returned to Beeville with bis family. It was during bis absence tbe Gal- *359 lagbers drove the cattle. This evidence, in tbe absence of any notification to the Gallaghers of his intended absence, strongly tends to prove at least a temporary abandonment of the conspiracy, and if so, appellant would be an-accomplice and not a principal. And while the accomplice is guilty of the same offense as the principal (Carlisle’s case, 31 Texas Criminal Reports, 547), yet it is well settled in this State that to convict one as an accomplice he must be indicted as such. McKeen’s case, 7 Texas Crim. App., 630; Sims’ case, 10 Texas Crim. App., 131; Truitt’s case, 8 Texas Crim. App., 148; Mills’ case, 13 Texas Crim. App., 487; Bean’s case, 17 Texas Crim. App., 60; Smith’s case, 21 Texas Crim App., 107; Bouldin’s case, 18 Texas Crim. App., 637; Phillips’ case, 26 Texas Crim. App., 228. For errors indicated, the judgment is reversed and cause remanded. Reversed and remanded. Judges all present and concurring.