
    Marion C. Poston v. The State.
    1. Accessory.—Indictment against one as an accessory to another in the commission of an offense must, besides charging the accessory as such, charge the principal with the offense committed.
    2. Same—Evidence — Charge of the Court.—It being necessary to so charge the offense, it is necessary that the proof show that the principal did commit the offense, and that the defendant was accessory thereto. If there be a reasonable doubt as to the guilt of the principal, the defendant cannot be held guilty as an accessory, and therefore it is the duty of the court to charge the law of reasonable doubt as to the guilt of the principal as well as to that of the accessory; and, if there be evidence tending to show a minor-degree of the offense than that charged in the indictment, the law of such degree should be given to the jury.
    3. Doubt of a fact upon which another fact depends necessarily involves doubt of the latter.
    Appeal from the District Court of Trinity. Tried below before the Hon. J. R. Kennard.
    The indictment charged that John Lewis, in Falls county, Texas, on the 1st day of March, 1879, made an assault with intent to murder J. D. Mercer and W. M. Carmichel, and that thereafter, on the 1st day of June, 1879, in Trinity county, Texas, the defendant, knowing of the offense committed by the said Lewis, did feloniously conceal and aid him to avoid arrest and trial for the offense, by feeding and keeping him in his house, and by giving him information of the approach of the peace officers, who were attempting his arrest. His trial resulted iii conviction, and a term of two years in the penitentiary was assessed as punishment.
    The substance of the testimony of W. M. Carmichel, the first witness for the State, was that en route to a mill in Falls county, on the 15th day of April, 1879, in company with J. D. Mercer, he was fired upon from ambush by James Lewis and others. On the following morning he secured a warrant for the arrest of Lewis, and as deputy sheriff made search' for him throughout the county, but failed to find him. He has not seen him since the shooting, nor does he know that the- James Lewis who fired on him is the same James Lewis who was harbored by the defendant.
    R. T. Chandler testified in substance that in June, 1879, he was sheriff of Trinity county, and had a warrant from Falls county for the arrest of James Lewis. He heard that Lewis was at the house of the defendant, and gathered three or four men as a posse, and went to the house early next morning. The party dashed up to the house about sunrise and found the defendant in the cow-, pen. Witness searched the house and found a pistol on a bed where some one had been sleeping. The defendant grew angry, and asked what the witness wanted, and if he wanted the Lewis boys about the Falls county shooting. He said that, by Gr—d, he knew where Jim Lewis was; that he was near by, but that witness could not get him,— that Lewis was his friend, and he would not give him away. The witness told the defendant why he wanted Lewis. The defendant further said that when the witness and posse reached the house, Lewis had stepped out to answer a call of nature, and that he had made a sign to him by waving a bucket, and Lewis had got away.
    W. L. Ashworth, for the State, testified in substance that, after Chandler’s raid on the defendant’s house, the defendant told him that he, his wife and Jim Lewis were at the cow-pen when Chandler’s crowd came up, and that he motioned to Lewis and the latter escaped. That some men in Falls county had ordered the Lewis boys to leave there, and Lewis had tried to kill them. The defendant did not say that he knew this at the time of the raid. He further told the witness that on that morning he carried a bucket of provisions to a point near where Lewis was and left it. The defendant and witness are not friendly.
    Roy, who claimed to have been near by during the interview between the defendant and Ashworth, testified to nothing of importance except that the defendant said he was going that night to where Lewis was, and would take him some provisions.
    G. W. Kinley, for the defendant, testified that he was one of the sheriff’s posse, and was sent by the officer to the rear of the cow-pen, which he reached before the others reached the house. He there saw the defendant, and walked with him up to the house. He did not at any time see the defendant make a sign in any direction by waving a bucket or otherwise. The witness lived near the defendant and was at his house the evening before the raid, at about one or two o’clock. The defendant was not there, but. Jim Lewis was. The witness went back to the defendant’s house about dark. The defendant had not returned, but Lewis was still there. By this witness and others it was proved that Lewis went about publicly throughout the neighborhood, manifesting no attempt at concealment.
    Mrs. Poston, the defendant’s wife, testified that Lewis had formerly lived in Trinity county, but left that county ■about two years before the sheriff’s raid, since which time she had not seen him until the day before the raid. On that day, about one o’clock, he came to the house, but the defendant was not at home, and Lewis left, going in the direction of James Poston’s, and returned about dusk. The defendant had not yet returned, nor did he get back until about ten o’clock. Lewis remained all night at the house. Kinley was at the house twice that evening, which was the evening before the raid. The witness knew that the defendant had not been concealing Lewis. She knew that the defendant did not carry him provisions from their house. She has never seen Lewis since the raid.
    James Poston, a brother to the defendant, testified that when Lewis returned to Trinity county, after an absence of two years, he came to the house of the witness on foot. The witness lived about one mile from the house of the defendant. The testimony of this witness went to prove that for the five or six days that Lewis stayed at his house, he traveled around the neighborhood publicly, making no effort at concealment, and principally, as he informed the witness, to procure a horse to return to Falls county to stand his trial. The witness himself informed the„ sheriff, Chandler,- that Lewis would be at his house that night.
    
      Robb & Stevenson, and Cooper & Cooper, for the appellant :
    We submit that in all cases of felony it is the duty of the judge, whether requested or not, to give in his charge all the law applicable to the case. Wasson v. State, 3 Texas Ct. App. 474; Code Crim. Proc. art. 594; Maria v. State, 28 Texas, 711. That it is the duty of a court to charge upon every phase of a case,—every logical deduction to be drawn from the-facts,— is obvious to this court and will not be further discussed. Now what is the law in this case ?
    I. We assume that the guilt of Lewis must appear just as though he was upon trial. Penal Code, arts. 89, 90. II. It should be shown that the appellant harbored Lewis. III. That at the time he thus harbored Lewis he knew of the guilt of Lewis, without which knowledge he could not be criminally liable. The jury, trying Poston as an accessory of Lewis for an assault with intent to murder, should have had submitted to them a direct issue as to the guilt of Lewis; which was not done. The jury should have been instructed that the presumption of innocence was in favor of Lewis, and, to authorize them to find appellant guilty as an accessory of Lewis, charged with an. assault with intent to murder, the evidence should show that, had death ensued, it would have been murder in Lewis, and unless they believed this they should acquit Poston.
    A charge should have been given the jury directing them, to inquire as to whether or not Lewis would have been guilty of an aggravated assault, should the jury not believe him guilty of an assault with intent to murder. Penal Code, art. 496. All these matters of error were brought to the attention of the court in appellant’s motion for a new trial; which, we submit, ought to have been sustained.
    
      H. Chilton, Assistant Attorney General, for the State
   Hurt, J.

The appellant Poston was convicted as an accessory to an assault with intent to murder, charged to have been made by one James Lewis. He was found guilty, and his punishment assessed at confinement in the penitentiary for a term of two years.

An indictment for this offense must charge that Lewis did make the assault with intent to murder, and that the defendant, the accessory, knowing that the offense had been committed, concealed, or gave the offender any aid by which he evaded arrest or trial. This indictment in proper form charged that Lewis made the assault, and that defendant, knowing this, concealed and aided him in preventing or avoiding an arrest. These allegations were absolutely necessary to the sufficiency of the indict-meat. Being necessary the State was bound to prove them as charged.

The first proposition was the guilt of Lewis. The second was that the defendant, having knowledge of Lewis’s guilt, concealed and aided him in preventing or avoiding an arrest. That Lewis was guilty of an assault to murder was a fact to be proven by the State. The guilt of Lewis, therefore, must be established to the same degree of certainty as if he were on trial,— the guilt of the accessory depending upon that of the principal. Hence the court must charge the law as fully in regard to the offense charged against Lewis as if he had been on trial. And as the punishment of the accessory is governed by that affixed to the crime committed by the principal (being the lowest penalty to which the principal is hable), if there be lesser offenses contained in the one charged, and the evidence requires it, a charge upon these degrees, must be given.

Was the charge in this case, relating to the offense alleged against Lewis, such as the law requires ? We are of the opinion that it was not. If the jury had entertained a reasonable doubt of the guilt of Lewis, they should have acquitted Poston. It was, therefore, a part of the law 'applicable to this case, and the court should have instructed the jury that if they had such doubt they should acquit the defendant Poston. For, although the defendant Poston may have concealed or aided Lewis, with a view to prevent an arrest, still, if Lewis was not guilty of the assault to murder, Poston did not violate any law of this State. The guilt of Poston depending upon that of Lewis, a doubt of Lewis’s guilt would be a doubt of the guilt of Poston. For, if there be a doubt of the existence of a fact upon which another fact depends, the existence of the latter must be doubted.

For the reason above indicated, ■ the judgment is reversed and the cause remanded.

Reversed and remanded.  