CARLISLE v. THE STATE

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Docket Number

No. 104.

Judges

HURT, PRESIDING JUDGE.

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JOHN T. CARLISLE v. THE STATE.

John F. Crowe, for appellant. — 1. The indictment is duplicitous. Penal Code, art. 79; Gould's Pleading, chap. 8, sec. 1; 4 Am. and Eng. Encyc. of Law, 755.

2. The indictment charging defendant as an accomplice alleges no time at which the offense was committed by Luttrell, the principal. 10 Am. and Eng. Encyc. of Law, 587, 588.

3. The indictment is insufficient, in that it alleges no venue, and states no place at which defendant is alleged to have done the things charged against him as an accomplice. 10 Am. and Eng. Encyc. of Law, 587, 588.

4. The indictment is insufficient, because it does not allege that defendant did prepare and furnish arms unlawfully, willfully, and of his malice aforethought. Tompkins v. The State, 4 Texas Ct. App. 161[ 4 Tex. Crim. 161]; Copping v. The State, 7 Texas Ct. App. 61[ 7 Tex. Crim. 61].

The rule announced in Henderson v. The State, 2 Texas Court of Appeals 88[ 2 Tex. Crim. 88], is not applicable to this case, whilst that announced in Dalton v. The State, 4 Texas Court of Appeals 333[ 4 Tex. Crim. 333], with regard to the charge of the court, when tantamount to an election as between counts, does apply, the charge of the court in the present case having instructed the jury that the preparing and furnishing the shot gun must have been done unlawfully, willfully, and with malice aforethought, though the indictment itself does not charge that it was so done.

The court erred in admitting, over defendant's objections, the conversations testified to by Lee and Harrison with Fogg, said conversations being had in the absence of defendant, there being no evidence so to connect the defendant with Fogg as to authorize his remarks and statements as evidence against defendant.

The court charged the jury in the tenth paragraph of his charge, "If you believe from the evidence that the defendant, John T. Carlisle, procured a gun and placed it, or caused it to be placed, in the office of the express company in Collin County, to be delivered to Charles Luttrell in Grayson County, and to be used by said Luttrell in the murder of W.T. Sharman in Grayson County, then in contemplation of law the act of the defendant in preparing and furnishing such gun was done in Grayson County, and he may be prosecuted in Grayson County for such act so done as aforesaid."

Defendant excepted to this as erroneous: 1. On the ground that there can be no such conclusion of law as that an act done in Collin County was done in Grayson County. Under our laws it is admitted that some offenses may by virtue of special statutes be prosecuted in counties other than that in which they were committed; but in these cases it is not because the law presumes the offense to have been committed at another place than where it actually was committed, but because the legislators thought that public justice or public convenience would be subserved by allowing a deviation from the ordinarily strict rules regulating venue; in such cases, the venue is laid in the county where the case is tried; "and to sustain the allegation of venue it shall only be necessary to prove that by reason of the facts existing in the case the county where such prosecution is carried on has jurisdiction." Code Crim. Proc., art. 224. But "the facts existing" in such cases are those by virtue Of which a special statute says an offense committed in one place may be tried in another. There is no statute which says that in any case an act committed in one place has in law been committed in another.

Defendant's second objection to this paragraph is, that it erroneously states that defendant may be prosecuted in Grayson County for an act done in Collin County. Chapter 2, title 4, Code of Criminal Procedure, treats "of the county within which offenses may be prosecuted," and articles 205-224 give a variety of cases in which the offense may be prosecuted in counties other than where committed; but outside of the cases there specified, article 225 governs, which is as follows: "In all cases except those enumerated in previous articles of this chapter, the proper county for the prosecution of offenses is that in which the offense was committed." The offense with which this defendant is charged is the preparing and furnishing arms to Charles Luttrell; every act done by this defendant, which was and is the sending of a gun to McKinney to be forwarded by express to C. Luthel at Denison, was done in Collin County, and unless there be some special statute authorizing a different forum, he must be prosecuted in Collin County.

What article in the chapter above cited can be construed to cover this case? If not article 214, then certainly not any. But article 214 only provides, that if a person receive an injury in one county and dies by reason of such injury in another, he may be tried in either of such counties. Sharman received no injury in Collin County. Sharman received no injury from Carlisle. All that was done by Carlisle was done in Collin County before — a full month before — Sharman was injured at all. Surely neither the letter nor the spirit of article 214 covers such a case as this, and Carlisle could only be tried for his alleged offense in the county where his offense was committed.

R.L. Henry, Assistant Attorney-General, for the State. — 1. The indictment contains but one count. It does not allege, as contended by appellant, two or move offenses. It alleges but one offense, accomplice to murder. It does allege several facts, a part or all of which would constitute that offense. It is sufficient and in conformity with established precedents. Willson's Crim. Forms, Nos. 533, 536; Cook's case, 27 Texas Ct. App. 239[ 27 Tex. Crim. 239].

2. The declarations of Fogg, testified to by Harrison and Lee, were properly admitted. The acts and declarations of the conspirators were so closely connected with the circumstances establishing a conspiracy as to make them both competent and admissible. Cox et al. v. The State, 8 Texas Ct. App. 254[ 8 Tex. Crim. 254]; Smith v. The State, 21 Texas Ct. App. 96[ 21 Tex. Crim. 96]; Harris v. The State, ante, 411.

The court did not err in the tenth paragraph of the charge complained of The charge complained of is the law.

First. The act of the agent is the act of the principal, is a principle of law rudimentary in its character. If the appellant delivered the gun to a carrier in Collin County, to be by him delivered to Luttrell in Grayson County, then the carrier was the agent of appellant, and through this agent appellant delivered the gun to Luttrell in the county of the prosecution, Grayson.

Second. It is objected that appellant is prosecuted in Grayson County for an act done in Collin County. The venue of the offense with which appellant was charged, and of which he was convicted, was properly laid in Grayson County. Appellant is not charged with any such crime as furnishing a gun with which to kill a man. There is no such offense denounced by the statute. The crime he is charged with is his participation in the murder of Sharman — his being a party to that murder. Appellant might, express guns to Denison every day for a year for the avowed purpose of having Sharman killed with them, and yet be guilty of no offense; but whenever one of his confederates takes the gun and kills the man, then he becomes guilty or the crime. What crime? Furnishing a gun? No. Killing a man — murder; and not being present, an accomplice to murder. Sharman was murdered in Grayson County. Article 225, Code of Criminal Procedure, provides that this offense shall be prosecuted in the county in which it was committed, and the proper court of Grayson County has jurisdiction to try all the parties to the offense.

1. Principals and Accomplices — Punishment. — In this State there is no difference between the punishment of an accomplice and a principal, because the crime is the same, and the legal maxim. "Qui facit per alium facit per se," is of universal application both in civil and criminal cases.

2. Jurisdiction of Acts Committed by an Accomplice in Another County. — Where all the acts constituting the defendant an accomplice were committed in the county of C., but the homicide was committed by the principal in the county of G., held, that the District Court of G. County had jurisdiction to try the accomplice for the murder committed by the principal in that county.

HURT, PRESIDING JUDGE.

In 1880, in Lee County, Texas, one Samuel Sparks was murdered in the town of Giddings, at night. J.M. Brown was sheriff of said county. In 1887 or 1888, Brown having moved to Fort Worth, indictments were presented against Ed Myers and J.T. Carlisle for the murder of Sparks. At the time of the killing Ed Myers was deputy sheriff for Brown. In the fall of 1888 Myers was tried, found guilty of murder in the second degree, and sentenced to twenty years in the penitentiary. On the trial of Myers, W.T. Sharman, the only eye-witness to the killing, testified, that he "was an eye-witness to the homicide of Sparks; that he was standing within a few feet of Sparks when he was killed; that Carlisle and Sparks were walking arm in arm toward Sparks' horse, which was hitched near by, and that Myers slipped lip behind them, and the night being dark, he stooped to get Sparks' head above the horizon, and fired a pistol directly at Sparks' head, the ball entering the base of the brain, and ranging upward and forward; that Sparks fell dead, whereupon Carlisle and Myers ran away; that he recognized Carlisle by his voice." There was deadly enmity existing between J.M. Brown and Sparks.

In the city of Denison, Grayson County, between the hours of 1 and 2 o'clock a. m. on the night of the 28th of April, 1892, while lying in bed with his wife and infant child, W.T. Sharman was shot with a shot gun by some person standing upon a ladder placed against the house, shooting over the top of the window sash, which had been lowered about six inches. Charles Luttrell was indicted as principal, tried, and convicted of murder of the first degree, with the death penalty; appealed to this court, and the judgment was affirmed.

On May 25, 1892, John T. Carlisle was indicted, being charged as an accomplice also, for the murder of W.T. Sharman; was on the 28th of October, 1892, tried and convicted of murder in the first degree, with the death penalty assessed against him also. From this conviction and judgment he appeals.

The acts constituting appellant an accomplice occurring in Collin County, counsel for appellant contends that Grayson County, the county of the homicide, was without authority to try the case, If an accomplice to a felony be guilty of a distinct offense from the felony committed by his principal, the position of counsel is well taken.

We have no definition of a crime named or called "accomplice," but. we are informed by our code what acts and things will make a person doing them an accomplice to all felonies to which there can be an accomplice. We are aware that there are numerous opinions of learned courts strongly intimating that an accessory before the fact (our accomplice) is guilty of a distinct offense from that of his principal. We desire to notice the reason or legal ratiocination of these opinions.

The following proposition is supported by a strong line of authorities: Accessory before the fact in one State to crime committed in another can not be punished in the State where the substantive crime is committed. The reasoning by which this proposition is sustained is, that as the acts constituting a person an accessory occurred in a State other than that in which the principal committed the crime, the State of the substantive crime can not punish those acts or the perpetrators, because done beyond the jurisdiction of the State in which the crime is committed by the principal.

Let us examine this subject, in the light of the same authorities which support the above proposition, a little further. A lives in Texas. He procures B, who also lives in Texas, to go to Missouri and there commit an act which is a felony in Missouri. B is innocent of anything wrong in what he does. These same authorities hold that Missouri would have authority to try and punish A. Upon what ground? Because A would be the principal. Again, A employs B to go to Missouri, and there commit a misdemeanor. B, with full knowledge of the criminal intent of A, would be guilty as a principal, and, as it was a misdemeanor, all would be principals, and Missouri would have authority to punish A, when in fact A had done no act whatever in Missouri, except through B. Again, A sends B to Missouri, armed and equipped for the purpose of murdering C, being instigated thereto by A. Missouri would not have authority to try and punish A, because all his acts were done in Texas, and because he was accessory and not principal. Now for the dilemma. Suppose Missouri should by statute make accessories before the fact principals, as several States have done, then she would have authority to try and punish A for the murder of C, when A had done no act in Missouri personally, acting alone through his guilty agent, B. What is the result of such doctrine? It is that the power or authority to punish acts committed beyond the border of the State, which are crimes within the State, depends upon technical distinctions between felonies and misdemeanors, accessories and principals, or whether the agent was guilty or innocent, and not upon the fact that the criminal act was or was not committed in the State.

There is another line of authorities resting upon solid foundation. The doctrine is this: That distinctions between accessories and principals rest solely in authority, being without foundation either in natural reason or the ordinary doctrine of law; for the general rule of law is, that what one does through another's agency is to be regarded as done by himself. In this State there is no distinction between the punishment of an accomplice and a principal, Why? Because the crime is the same. In morals there are circumstances in which we attach more blame to the accomplice than to his principal; as when a husband commands his wife, or master his servant, to do for his benefit a criminal thing, which in his absence is done reluctantly, through fear or affection overpowering a subject mind. That the crime committed by the accomplice is the same as committed by his principal is evident. This proposition rests upon solid legal ground. In 1 Broom's Legal Maxims (second edition), 643, we find this maxim; "The principle of common law, 'qui facit per alium, facit per se,' is of universal application in both criminal and civil cases." If appellant be guilty, of what offense is he guilty? He is guilty of murder of the first degree. Why is he guilty of murder of the first degree? Simply because he, with his malice aforethought, expressed through his agent and tool, Luttrell, killed W.T. Sharman. He is guilty because Luttrell's act, was his act, Luttrell being his agent Appellant is guilty of the murder of Sharman in Grayson County, though the acts constituting him an accomplice may have all occurred in Collin County. Why? Because when his agent Luttrell shot and killed Sharman in the city of Denison, Grayson County, it was appellant also, who, through Luttrell, shot and killed him in Grayson County

The correctness of this doctrine is clearly supported in the death of Uriah, which was caused by David The Lord, speaking through Nathan, said to David: "Wherefore hast thou despised the commandment of the Lord, to do evil in his sight? Thou hast killed Uriah, the Hittite, with the sword, and hast taken his wife to be thy wife, and hast slain him with the sword of the children of Ammon." Now, David was not present when Uriah was killed. David did not with his own hands slay Uriah with a sword, but when Joab placed Uriah in a position in which death was inevitable, and thereby had him killed, under the command of David, David killed Uriah with a sword just as if he had slain him with his own hands. We are of opinion that the offense of the accomplice and his principal is the same, and, if at all, his crime was murder of the first degree, committed in Grayson County, and hence the venue of the case was in Grayson County.

Some further observations on this subject: We desire to call attention to the very wise remark of Judge Marcy in People v. Mather, 4 Wendell, 229. He says: "Writers on criminal law make some difference between the offense of principal and accessory, but it is chiefly as to the order and mode Of Proceeding against them." By Statute of New York it is provided, that all suits, informations, and indictments for any crime or misdemeanor, murder excepted, should be brought within three years after its commission. The word "murder" was held to include as well accessories before the fact as principals. If an accomplice is guilty of a distinct felony from that of his principal, then a prosecution for being an accomplice to murder is barred by three years, for such an offense is not named in the statute regulating limitations. The indictment is sufficient, and not obnoxious to the objections made to it. The evidence complained of, under the circumstances of this case, was admissible. The evidence amply supports the verdict. The judgment is affirmed.

Affirmed.

Judges all present and concurring.

JOHN T. CARLISLE v. THE STATE.

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