
    (86 Tex. Cr. R. 307)
    MIDDLETON v. STATE.
    (No. 5471.)
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1919.
    On Motion for Rehearing, Feb. 4, 1920.)
    1. Homicide <@=>234(5) — Evidence sufficient TO PROVE DEFENDANT’S CONNECTION WITH KILLING'.
    In murder prosecution where actual killing had been done by person other than accused, evidence held sufficient to prove accused was connected with the killing, either as accomplice or as a principal.
    2. Cbiminal law <§=5780(3) — Instruction on accomplice’s testimony proper.
    Instruction on accomplice’s testimony that there must be other evidence than that of the accomplice “tending to connect” the accused with the offense charged held proper; the words “tending to connect” having reference to the corroborated testimony and not the accomplice’s testimony.
    3. Criminal law <§=5508(1) — Accomplice not incompetent because brought from jail TO TESTIFY.
    That accomplice was brought from jail to testify against defendant was no valid ground for objection to his testimony.
    4. Criminal law <@=5696(3) — Objection to TESTIMONY MUST BE MADE WHEN TESTIMONY IS OFFERED.
    Motion to strike out objectionable testimony must be made upon ground presented when witness offered to testify.
    5. Criminal law <@=559(3) — Principal need NOT BE PRESENT AT COMMISSION OF CRIME.
    One may be a principal who is not bodily present when the offense is committed.
    6. Homicide <§=5305 — Instruction on law of PRINCIPALS PROPER.
    In prosecution for murder where there was evidence of defendant’s connection with the killing both before and after the commission of the crime, court properly gave instruction upon the law of principals.
    7. Homicide <§=5281 — Whether defendant was acting in furtherance of common DESIGN AT TIME OF KILLING A QUESTION FOR JURY.
    In prosecution for murder, question of whether at the time of the killing by person other than defendant defendant was doing his part in furtherance of a common design to murder held for the jury under the evidence.
    8. Criminal law <§=559(5) — One who removes A POSSIBLE WITNESS OF THE CRIME IS A “PRINCIPAL.”
    One who purposely removes a possible or probable witness for' the purpose of preventing the witnessing by such person of the proposed crime, and who is keeping such person away, is a principal within Pen. Code 1911, art. 78, defining principals as persons who engage in procuring aid, arms, or means of any kind to assist in the commission of an offense while others are executing the unlawful act, and per- J sons who endeavor at the time of the commission of the offense to secure the safety or concealment of the offenders.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Principal.]
    9. Homicide <§=5281 — Whether defendant REMOVED CHILD, A PROBABLE WITNESS, FROM SCENE OF KILLING A QUESTION FOE JURY.
    In prosecution for murder, question of whether deceased’s daughter, with whom defendant was at time of killing, had been kept away by defendant, and whether daughter was a probable witness, so as to constitute defendant a principal, held questions of fact for jury.
    10. Criminal law <§=5510 — Unnecessary to CORROBORATE ALL OF ACCOMPLICE’S TESTIMONY.
    It is not necessary to corroborate an accomplice’s entire narrative, nor all of his testimony.
    11. Homicide <§=>234(5) — Facts showing conspiracy. f
    In prosecution for murder, facts held to show a conspiracy between defendant and person who 4id killing.
    12. Criminal law <§=>59 (4) — Conspirator a principal in crime committed by other conspirators.
    During continuance of conspiracy the acts of each conspirator in furtherance of the common design are the acts of all, and each would be a principal in any crime committed in the execution of such design.
    13. Criminal law <§=51091(10) — Appellate court may decline to consider multifarious bill of exceptions.
    • Bill of exceptions containing a continuous narration of the exceptions taken to the testimony of five different witnesses is multifarious, and appellate court may decline to consider it.
    14. Homicide <§=>154^Clothes of deceased ADMISSIBLE FOR PURPOSE OF IDENTIFICATION.
    In homicide prosecution where body of deceased had not been found until after the body itself was beyond identification, the clothing found, together with bones, hair, etc., near spot where confessed accomplice claimed to have hidden body, was admissible for purpose of identification.
    15. Criminal law <§=5696(3) — Evidence of WITNESS WHO FOUND REMAINS OF DECEASED NOT STRICKEN OUT THOUGH REMAINS COULD NOT POSITIVELY BE IDENTIFIED.
    In homicide prosecution where bones, hair, clothing, etc., of deceased were not found until long after killing, court properly refused to strike out evidence of witnesses who found the bones, hair, etc., because of the fact that they were unable to state positively that same were those of deceased.
    16. Homicide <§=>262 — Hammer claimed to HAVE BEEN USED IN KILLING PROPERLY EXHIBITED TO JURY.
    In action for murder where defendant’s accomplice testified to having killed deceased with hammer while repairing deceased’s automobile, a hammer and hatchet found in deceased’s automobile after ter death held properly exhibited to jury.
    17. Homicide i&wkey;173 — Testimony by grand jury foreman as to efforts to ascertain MEANS OF KILLING ADMISSIBLE.
    In homicide prosecution where it was alleged in the indictment that grand jury did not know the means by which deceased was killed, it was not error to permit foreman of grand jury to testify as to the efforts made by the grand jury to ascertain such means and their inability to do so.
    On Motion for Rehearing.
    18. Criminal law <&wkey;841 — Charge must be EXCEPTED TO IN DUE TIME.
    Under the statute the court’s charge must be excepted to in due time, so that the supposed errors which are pointed out may be corrected and the cost and delays of appeal lessened, and failure to so except in due time cures all errors in the charge not fundamental.
    19. Courts <&wkey;90(6) — Court will announce ERROR MADE IN PRIOR DECISIONS ON ITS ATTENTION BEING CALLED THERETO.
    As between the line of decisions of the court which the court believes to announce the law correctly and another line of decisions which appear to arrive at erroneous conclusions, it is court’s duty to announce the error when its attention is called thereto, and to affirm its views of what the law really is.
    20. Criminal law <&wkey;59(3) — When persons ARE “PRINCIPALS.”
    Under Pen. Code 1911, arts. 74, 76-78, all persons are principals who are guilty of-acting together in the commission of an offense where act was done in pursuance of a common intent, whether all were actually bodily present on the ground when the offense was actually committed or not.
    21. Criminal law <&wkey;59(4), 792(1) — Party NOT ACTUALLY COMMITTING CRIME TO BE A PRINCIPAL MUST HAVE BEEN ACTING WITH PERSON WHO COMMITTED CRIME IN EXECUTION OF COMMON PURPOSE.
    Where person who did not actually commit crime was prosecuted as a' principal, the evidence must show, and the charge of the trial, court submit, that at the time of the commission of the offense the parties must have been acting together, each doing some part in the execution of the common purpose..
    22. Criminal law <&wkey;1172(l) — Giving of incorrect CHARGE HARMLESS.
    In prosecution for a crime actually committed by another, the giving of an incorrect charge on the law of principals is not reversible error, if the unquestioned proof shows that accused was a principal under any phase of the statute defining principals, but mere proof that accused was present at time of commission of crime is not sufficient to render such charge harmless.
    23. Criminal law <&wkey;1093 — Bill of exceptions TO ALL OF TESTIMONY INSUFFICIENT IF PART OF TESTIMONY COMPETENT.
    Bill of exceptions containing objection and exception to all of the testimony of certain witness was properly overruled, where a part ol such testimpny was competent and material.
    24. Criminal law <&wkey;695(6) — General objection TO TESTIMONY, PART OF WHICH IS ADMISSIBLE, NOT SUFFICIENT.
    A general objection to the testimony of a witness, a part of which is material and competent, will not .avail.
    Appeal from District Court, Liberty County; J. L. Manry, Judge.
    T. E. Middleton, alias T. E. Lewis, alias Blaekie Lewis, was convicted of murder, and he appeals.
    Affirmed.
    C. F. Stevens, of Houston, and W. T. Norman, of Liberty, for appellant.
    C. M. Cureton, Atty. Gen., and E. F. Smith and Alvin M. Owsley, Asst. Attys. Gen., for the State.
   LATTIMORE, J.

In this case appellant was convicted of the murder of Mrs. Mary Lewis, in the district court of Liberty county, and his punishment fixed at death.

Without going into the sickening details of this case, which show without controversy that a helpless woman was knocked in the head and killed by those for whom she had eared and provided, we make this brief statement of the facts:

The evidence is sufficient to show that deceased came to her death as the result of the criminal agency of another, and that appellant was connected with the killing, either as accomplice or a principal.

One Robert Osment testified, under agreement with the state, that he actually committed the homicide, but that appellant had .carried the 11 year old child of the deceased away from the scene of the killing to keep her from being a witness thereto and prevent the necessity of killing her also; and that the killing was in pursuance of an agreement so to do and for the purpose of getting the money of deceased, both what she had on her person and in the bank, and the payments of a continuous income, which was hers from various sources. Nothing in the record discloses any act or word of deceased showing enmity toward either appellant or Osment, or that the motive for the killing was other than the removal of an obstacle which stood between .them and the getting of her money.

According to the story of this accomplice, after his victim was killed by repeated blows on the head from a hammer, he got a money belt off of her body, which he gave to appellant; they left the community together the nex-t day in the automobile of deceased; both of them told other parties before leaving that Oklahoma officers had come and gotten deceased; appellant claimed that she and they would be back shortly; he sold hogs belonging to her and collected money for them. Soon after her death he began forging checks on her barik account, upon which he got the money; later, and just before the return of the indictments against him and Osment, he stated that deceased was in Kansas City, and would be down in that community the following spring.

Appellant placed no witnesses- on the stand.

An examination of the record shows that the first error complained of by appellant is that the charge on accomplice testimony is not correct, in that it instructs the jury that there must be other evidence than that of the accomplice tending to connect the accused with the offense charged. This charge was correct. See 1 Branch’s Ann. Penal Code, § 710. The words “tending to connect!’ are not used as referring to the accomplice’s testimony, but to the corroborative testimony.

Appellant reserved three bills of exceptions, which appear in the record. The first bill complains that the accomplice witness, the man Osment, who turned state’s evidence, was brought from the county jail to testify, and was therefore under intimidation and could not testify freely, and after he had been permitted to testify the court overruled appellant’s motion to strike out his testimony on the ground that he was the perpetrator of the crime, and his case had been dismissed, but that he had not been released from custody. There is nothing in the record to show any statutory affidavit for severance, and no tenable objection made before this witness testified. The fact that he was brought from the jail would be no valid ground of objection. It would in no event be sufficient for appellant to make a motion to strike out the objectionable testimony of a witness upon grounds not presented when the witness offered to testify, and there ,was no error in overruling the objection made, or in refusing appellant’s motion. There is nothing apparent in the record showing any intimidation of the witness, or any refusal to testify fully to any questions asked him upon either direct or cross examination. It appears from the record that the case against this witness bad been dismissed.

Appellant’s 'next bill of exceptions presents all of the exceptions taken to the court’s charge, none of which point out specifically, by quotation or paragraph, the errors complained of, but, in view of the seriousness of the case and the gravity of the punishment, we have considered the matters contained in said exception. It is complained that the court erred in telling the jury that one may be a principal offender who is not bodily present when the offense is committed. This was not error, as it is in accord with our statutes and decisions that one may be a principal who is not present in person. See Branch’s Ann. Penal Code, arts. 76, 77, and 78, and authorities cited. Again, said charge is excepted to for submitting to the jury the law of principals; it being contended that there was no evidence justifying the same. We cannot agree with this contention.' It has been held in this state that an accomplice is one who completed his offense before the crime is actually committed, and whose liability therefor is dependent on his previous acts ip connection therewith. Cook v. State, 14 Tex. App. 96; Bean v. State, 17 Tex. App. 61. So that in arriving at a determination of the question as to the attitude of one whose connection is shown, both by the testimony of the accomplice and the attendant circumstances, to have existed before and after the commission of the crime-under investigation, we- might look to the rule mentioned for determining who are accomplices.

Referring to the contention of appellant that one cannot be a principal who is not bodily present at the time of the commission of the offense, we might remark that it is seriously questionable under this record whether appellant was absent from the scene at the time of the killing. The accomplice testified in detail to extended and continuous conversations with appellant' prior . to the killing in which there was a growing insistence on the part of appellant that Osment kill deceased in order that they might get her money, and that it was finally agreed that Osment should kill her the day prior to that of the actual homicide; and that on that day Osment took deceased in the automobile and carried her out in the bottom, away from the camp, with the intention of killing her, but his heart or nerve failed him, and he brought her back to camp alive. He testified that appellant cursed him and abused him for not killing her that day, and told him that he must kill her the next day or some one would not leave the river bottom alive. He also said that appellant told him in detail how to kill her, and what to do with the body, etc.

The evidence shows that the next day, the same being the 16th of August, at about 3 o’clock in the afternoon, appellant (who went by the name of T. E. or “Blackie” Lewis, and was known in the community as the son of deceased) and the little girl Violet' Lewis carried Osment and the deceased in a skiff from the houseboat occupied by the entire party to the bank of the river. The automobile of deceased was on the river bank. Appellant and the little girl did not go up the bank to the automobile, but Osment and deceased did. We quote from the testimony of Osment:

“Anyhow, she and I went up the river bank, and I took her to the ear. I got a chance to change the casing, and she started ,to help me, and she stooped down. * * * When she stooped down I hit her with the hammer * i * on the head. * * * I do not know how many, times I hit her. * * * It was between five and ten minutes, I guess, after' I landed on the bank, until I did that.”

This witness further says that just before he hit her he heard a noise in a little thicket right close by, which he thought was made by appellant, and that .he was afraid of appellant, and assaulted the deceased and killed her as aforesaid. Where, in fact, was appellant at that time? When Osment and deceased were landed from the skiff a few minutes before the killing, Osment says appellant left to go to the launch.

The child who was in the skiff with appellant testified as follows on thiá point:

“Blackie (appellant) and I went to pump out the launch. * * * We had gotten about as far up the river as from here to that brick building out there — as far as. from here to the back of the house. * * * Blackie got out. * * * He says, ‘I will walk around the bend. I don’t want to^ pass old man Green’s camp.’ ”

The child further states that he told her he would cut across the bend and meet her when she got around there, and that she paddled the boat on up the river around the bend and that he did meet her; that it was a nearer way across the bend than the one she had to go with the boat; .that at the point where he got out of the boat she could not see her mother and Osment up on the bank.

It was a very singular «circumstance,. indeed, that appellant should have landed Osment and deceased from the skiff and that they went up on the bank to the automobile, where Osment killed deceased in a few minutes, and that as soon as appellant got out of sight, and at a distance estimated by the child as far as the back of the house, he should have landed from the boat and had the 11 year old girl child paddle the boat against the current and around the bend, while he went across the nearer way. What was the noise that was heard by Osment in the nearby thicket, which he says he thought was appellant? The record is silent as to appellant’s movements from the moment he landed from the boat until he had met the child after she had paddled around the bend; but we note that it is in testimony that when appellant first met Osment that evening, after the killing, without any conversation or explanation, he remarked to Osment: “You did what I told ,you to, didn’t you?”

Again, it was a question of fact for the jury to decide whether or not at the time Osment did the killing appellant was doing his part in furtherance of a common design to murder. Osment says:

“The reason why the child' did not go with us was Blackie told her not to go. He would not let her go, so she would not be in the way, and that was why he was keeping her from there, so she would not see. me kill her mother.”

In •another place, this witness says:

“Blackie said he would take Violet up to the launch, so we would not have to kill her, and she would not know anything about it. He said that he was going to do that, and he did do that; I suppose he did; he left to go to the launch.”

There is no doubt in our minds on the proposition that one who purposely removes a possible or probable witness for the purpose of preventing the witnessing by such person of the proposed crime, and who is keeping such person away, is within the definition of a principal, as contained in article 76 of our Penal Code, which is as follows:

“All persons who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense, while others are executing the unlawful act, and all persons who endeavor at the time of the commission of the offense, to secure the safety or concealment of the offenders, are principals, and. may be convicted and punished as such.”

Wás the child a probable witness, and was she removed and kept away by appellant? These were questions of fact for the jury. If the actions of appellant evidenced to any extent or degree, however slight, his participation in the matter of concealment or procuring the safety of himself and' OSr ment, or of Osment, at the time the deceased was killed, this would be a matter for the jury to decide, under proper instructions on principals.

It is not necessary, under our authorities, to corroborate an accomplice’s entire narrative, nor all of his testimony. Holmes v. State, 70 Tex. Cr. R. 423, 157 S. W. 493; Payne v. State, 40 Tex. Cr. R. 290, 50 S. W. 363; Darlington v. State, 40 Tex. Cr. R. 333, 50 S. W. 375.

There is another theory' upon which might be predicated appellant’s conviction as a principal offender. The record shows that the objective of appellant and Osment was to get the money and the property of the deceased. They could have had no'other reason or ground for causing the death of the ¡helpless woman, except that same was apparently a necessary step in procuring her money. Osment details the plan as outlined to him by appellant, who, as stated, was going under the name of T. E. Lewis and claiming to be the son of deceased. Said accomplice says that after deceased was killed appellant was going to marry a girl whose name was Mary, and after obtaining the money in the bank all future cheeks and receipts necessary to continue to get the income of deceased woijld be signed by said girl as “Mary Lewis,” and the matter could continue indefinitely. After the death of de'ceased, appellant, in pursuance of this plan, as disclosed by the evidence of other parties, forged checks and got money belonging ¿to deceased out of the bank, and made many false statements as to her whereabouts; the first one being made the afternoon she was killed and shortly after it occurred. He also appropriated her property, beginning that very afternoon. These facts clearly show a conspiracy between Osment and appellant, and for so long as same continued, anjl until its consummation, the acts of each in furtherance of the common design were the acts of all, and each would be a principal in any crime committed in the execution of such design. We think the trial court did not err in submitting the law of principals to the jury. There was no exception to the manner of such submission.

Appellant’s remaining bill of exceptions is to the testimony of the witnesses who found what purported to be the remains of deceased. It appears from the record that after his conviction Osment carried the officers to the spot where he said he had placed the body of deceased. It was under water at the time they went there, but the officers waded in the water and found the entire skeleton, clothes, hair, etc., of a woman. Witnesses upon the stand identified the clothing by color and description as that which, in their judgment, was worn by deceased at the time of her death. The bill of exceptions is multifarious, containing a continuous narration of the exceptions taken to the testimony of five different witnesses, and we might content ourselves with declining to consider it for that reason, but the severity of the penalty has led us to give the matters complained of our attention.

We do not think the court erred in permitting the clothing found near the spot where the body was said to be hidden to be exhibited before the jury, The identification of the deceased was a serious contention, and it was proper to permit the witnesses to examine the clothing and testify that in their opinion the same were the clothes worn by deceased. This exhibition of the clothing to the witnesses placed it before the jury as effectually as did its actual tender as evidence by the state. Nor do we think there was any error in refusing to strike out the evidence of witnesses who found the bones, hair, etc., because of t“he fact that they were unable to state positively that same were those of deceased; nor do we believe any error was committed by the exhibition before the jury of a hammer and hatchet found in the car of deceased after her death. It was alleged in the indictment that the grand jury did not know the means by which she was killed, and it was not error to permit the foreman of the grand jury to testify about the efforts made by the grand jury to ascertain such means and their inability to do so.

We have given to this case our careful attention and'scrutiny. The enormity of the crime,- and the fact that the gravest penalty known to our law was inflicted, has led us to thoroughly sift each fact and circumstance.

We are unable to find any reversible error in the record, and the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant’s able motion for rehearing urges a number of interesting questions; first among them being the insistence that the charge of the trial court on principals was erroneous, and that, we should have so held.

Our procedure in this state requires, under certain statutory directions, that the charge of the court be excepted to in due time, so that the supposed errors which are pointed out . may be corrected, and the cost and delays of appeals be lessened; failure to so except is held to cure all errors in the charge not fundamental. Examining the charge in the instant case and the exceptions reserved thereto, we find that two exceptions were leveled at that portion of the charge now urged as erroneous. Said exceptions are as follows:

“1. The court erred in his charge on the law of principals under the facts in this case wherein it is stated in said charge that defendant was a principal, whether bodily present on the ground when the offense was actually committed or not. *
“2. Because the court erred in submitting the case to the jury on the charge as written, because there is no evidence justifying the court in submitting the case to the jury on the theory that the defendant was the principal in the commission of the offense.”

That part of the court’s charge at which said exceptions were directed' is as follows:

“All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the true criterion for determining who are principals is: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? ' If so, then the law is that all are alike guilty, providing the offense was actually committed during the existence and in the execution of the common design and intent of all, whether in point of fact all were actually, bodily present on the ground when the offense was actually committed or not.”

In order to fully understand the rulings of this court and its application of the rule mentioned to said exceptions, arid to further ascertain if the charge given was correct, we quote from that portion of the charge wherein the law was' applied to the facts of the case:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, T. E. Middleton, alias T. E. Lewis, alias Blackie Lewis, acting 'With Robert Osment, in tbe county of Liberty and state of Texas, on or about the time alleged in the indictment, with a deadly weapon or instrument reasonably calculated and likely to produce death by the mode and manner of its use, and not in defense of himself against an unlawful attack, real or apparent, reasonably producing a rational fear or expectation of death or serious bodily injury, and not under circumstances which would reduce the offense to the grade of manslaughter, with intent to kill, did unlawfully' and with «talice aforethought, by some means unknown to the grand jury, and thereby did kill said Mrs. Mary Lewis as charged in the indictment, you will find him guilty of murder, as charged, and assess his punishment at death or by confinement in the penitentiary for life, or for any term of years not less than five.”

The first of said exceptions is based on the proposition that under the facts it was error to tell the jury that defendant could be found guilty and punished whether bodily present or not, and the second sets forth that there was no evidence supporting the theory that appellant was a principal at all in the case. Neither of these two exceptions is to the form of the court’s charge on principals, and substantially both insist that no charge on that theory should be given under the facts. No special charge was asked. The trial court was correctly of opinion that there were facts in evidence calling for a charge on principals; and inasmuch as one may be a principal under the law when not bodily present as fully as when present, and- the theory of absent principals was supported by evidence, it was the duty of the trial court to submit that theory also. It follows, in our opinion, that neither of said exceptions was well taken; but it is so earnestly insisted by counsel for appellant that the charge defining principals was erroneous and that this court has often so held, that we have given our careful attention to the charge mentioned to see if the same be error and in any wise effective in having visited upon' appellant the severe penalty inflicted.

We have found among the decisions of this court an apparent conflict with regard to said charge. Beginning with the Welsh Case, 3 Tex. App. 413, there is an unbroken line of decisions upholding this form of charge. See Scales v. State, 7 Tex. App. 361, opinion of unanimous court by Judge Clark; Cook v. State, 14 Tex. App. 96; Bean v. State, 17 Tex. App. 60, unanimous opinions by Judges White and Willson, respectively. These cases are approved by citations continuously, and have never been overruled, as far as we are aware. However, in the Yates Case, 42 S. W. 296, the form of charge given by the trial court in the instant case was held erroneous, but without discussion or reasoning; the court merely stating that such holding was on authority of the Dawson Case, 38 Tex. Cr. R 50, 41 S. W. 599. The Dawson Case is not authority for such holding. -Its facts showed a conviction as a principal of one whose entire connection with the alleged offense was unquestionably ended before the offense was committed, and who could only have been held as an accomplice. It does not appear in the opinion in the Dawson Case what character of charge on principals was given by the court, but this court, speaking through Judge Henderson, simply held that, the facts failing to show appellant guilty under any phase of the law of principals, the trial court should only have submitted the count in the indictment charging the accused as an accomplice.

A charge somewhat similar to the one under discussion was held bad in the Wright Case, 40 Tex. Cr. R. 45, 48 S. W. 191, upon the cited authority of the Yates and Dawson Cases, supra, but this court affirmed the Wright Cases because it appeared from the facts therein that the appellant was a principal under the law, and we held the charge to be harmless error.

In Joy’s Case, 41 Tex. Cr. R. 46, 51 S. W. 933, this court, again speaking through the same learned judge who rendered the Yates, and Dawson opinions, condemned the charge under review, without discussion or analysis thereof, but solely on the authority of the Dawson, Yates, and Wright Cases, supra.

The Criner Case, 41 Tex. Cr. R. 290, 53 S. W. 873, contains a charge somewhat similar to the one under review, but which is manifestly erroneous, and in disposing of the ease by reversal, this court says that said charge has been held erroneous, and cites the above cases.

In Steed v. State, 43 Tex. Cr. R. 567, 67 S. W. 328, said charge is held bad, merely citing the authorities we have discussed, and holding in effect that one cannot be a principal unless he is bodily present when the offense is committed. There was no discussion in the opinion of the authorities cited.

In McAllister v. State, 45 Tex. Cr. R. 258, 76 S. W. 760, 108 Am. St. Rep. 958, the case is reversed for other errors, but this court condemns without analysis a charge similar to the one under discussion, merely citing the Criner Case, supra.

In McDonald v. State, 46 Tex. Cr. R. 4, 79 S. W. 542, the charge under discussion was condemned, citing as authorities the opinions we hav,e above mentioned, without analysis of any of them. This opinion is by the same learned judge who handed down that in the Steed Case, supra, and holds that to be a principal one must be actually and bodily present when the offense was committed.

In the Barnett Case, 46 Tex. Civ. App. 459, 80 S. W. 1013, the same eminent jurist held this charge erroneous, citing the above cases. The facts as stated showed appellant in that case to be guilty only as an accomplice.

The Armstead Case, 48 Tex. Cr. R. 304, 87 S. W. 824, holds the above charge erroneous in a case of circumstantial evidence in which the evidence tending to connect the accused with the commission of the offense was his possession of recently stolen property. Said case holds, however, that the form of charge given in the instant case would not be reversible error if the proof showed the accused to be a principal under some phase of the law of that issue.

Holmes v. State, 40 Tex. Cr. R. 348, 91 S. W. 588, condemns the charge under discussion without analysis or reasoning, merely referring to some of the eases above mentioned. The charge is heid bad because it permits the jury to convict as a principal one who was not present at the commission of the offense, and the opinion states that the facts only showed his guilt as an accomplice. This opinion was also rendered by the same learned judge who spoke for the court.in the Steed and McDonald Cases, supra.

In Fruger v. State, 50 Tex. Cr. R. 621, 99 S. W. 1014, said charge is condemned without discussion, citing the above authorities, and the case is reversed for this and other reasons. No statement of facts appears.

In the O’Quinn Case, 55 Tex. Cr. R. 18, 115 S. W. 39, a case is discussed in which substantially a similar charge was given to the one under discussion, and said charge is condemned, citing the above authorities without analysis of any of them.

In the Davis Case, 55 Tex. Cr. R. 495, 117 S. W. 159, a case is presented in which the issues making the accused a principal under any phase of the law were sharply contested, and the facts showing the guilty connection of the accused were occurrences which took place after the commission of the alleged offense. The charge under discussion was condemned, citing some of the above authorities, and without analysis of any of them.

In Clark v. State, 60 Tex. Cr. R. 173, 131 S. W. 556, this charge is condemned, but the court held that if the parties were engaged in a common purpose, one doing one part and the other doing another part, when the offense was committed, they would be principals, and the error of such charge would not be reversible.

In La Fell v. State, 69 Tex. Cr. R. 307, 153 S. W. 884, this charge is condemned on the authority of the cases above discussed; it being held that said charge was erroneous, especially where the defense was alibi and the case one of circumstantial evidence, and the inculpatory facts occurred either before or after the commission of the alleged offense.

In Silvas Case, 71 Tex. Cr. R. 213, 159 S. W. 223, this court held erroneous a charge similar to the one under discussion, citing the above authorities again, without analysis of any of them. It is stated that said charge would not be reversible error if the evidence showed without controversy appellant’s presence when the offense was committed; by which we take it this court meant to say that, if the evidence in a given case shows without controversy that the accused was a principal under any phase of the law, this charge would not be reversible error. It is also stated in the opinion that such a charge is reversible in felony cases where the defense is alibi, or the evidence is circumstantial, or only such as shows guilt as an accomplice or accessory.

Reviewing the above decisions carefully, and examining their statements law and of fact, it is apparent that the Yates Case is the original and foundation opinion, upon which is piled up a gradually lengthening line of authorities holding the charge in the instant case erroneous., Not one of the cases cited discusses or analyzes in the opinions the said authorities. The Yates Case is based entirely upon the Dawson Case, and it is perfectly apparent from a reading of the Dawson opinion that it is not authority for the holding in the Yates Case, and that the superstructure of precedent piled upon precedent must fall with the authority cited as the basis and reason for such holding, unless by some sound reason the charge be now found to be erroneous.

We have much respect for the ancient and honored doctrine of stare decisis, but as between a line of decisions of this court which we believe announces the law correctly and another line of decisions which appear to us to arrive at incorrect conclusions and to be based upon erroneous citations, we believe our duty is plain to announce the error when our attention is called to the same, and to affirm our views of what the law really is. We think the charge in this case correctly states the definition of principals. Article 74 of our Penal Code says that all persons who are guilty of acting together in the commission of an offense are principal offenders. Following this comprehensive general statement of the underlying principle, which is acting together in the commission of the offense, come articles 76 to 78, each pointing out specific ways in which the parties may be said to act together. The six specific definitions in these articles hold that in the following cases the parties are principals:

(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.

(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.

(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act

(4) When A. actually commits the offense, but B., at the time of such commission, is endeavoring to secure tbe safety or concealment of A., or of A. and B..

(5) When A. employs' an innocent agent, or by indirect means causes tbe injury, or brings about tbe commission of tbe offense.

(6) When A. advises or agrees to tbe commission of tbe offense, and is present when tbe same is committed, whether be aid or not.

Of these six statutory ways in which parties may act together and be principal offenders, it will be seen that two only require tbe presence of the coprincipal with tbe one actually doing tbe criminal act, while four make him a principal though physically absent from tbe scene of the crime; but no confusion will arise if we keep clearly before us tbe underlying principle that in every case, no matter what phase of tbe law is involved, tbe evidence must show, and tbe charge of tbe trial court submit, that at tbe time of the commission of tbe offense tbe parties must be acting together, each doing some part in tbe execution of tbe common purpose. As is well set forth in tbe Cook Case, 14 Tex. App. 96, just here lies tbe line of cleavage between accomplices and principals; that is, that unless tbe accused be then actually doing something (which associates him with the execution of tbe unlawful act at the very time it is done, be would not be a principal. It would be immaterial which one of tbe six methods mentioned be pursues, but be must be doing something in some one of the ways enumerated.

Turning to tbe charge complained of, which we observe has been carefully analyzed by some of tbe brightest minds that have ever adorned this bench before the holding which we conceive to be erroneous in the Yates Case, we see that said charge tells the jury that before they could convict they must believe beyond a reasonable doubt that the accused, Middleton, “acting with Robert Osment, * * * in Liberty county, Tex., at the time alleged in the indictment, * * * did unlawfully kill Mrs. Mary Lewis, with malice aforethought,” before they could find him guilty. Further, in its definition of principals, the court says that “All persons are principals who are guilty of acting together in the commission of an offense.” We note that this is exactly what .is said by article 74 of our Penal Code in its comprehensive definition of principals.

In Cecil’s Case, 100 S. W. 390, this court, affirming a 75-year sentence for murder in a case wherein the above was- all the law on principals submitted, used this language:

“We do not believe it was essential in defining ‘principal’ to do more than was done by the court in this case.”

Referring to the charge in the instant case, after the language above set forth, the court continued its definition of principals as follows:

“When an offense has been committed by one or more persons, the true criterion for determining who are principals is, Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, whether all were bodily present or not when the offense was actually committed.”

We affirm that it is necessarily true that in all cases of absent principals the thing or things done at the time by the one not present must result from a common intent or previously formed design, else there could be no acting together; and likewise it follows with equal force and certainty that, if parties have a common intent or previously formed design to commit an offense and act together in the commission of the same, they are and must be principals, and equally so whether the particular act of the coprincipal bring him under one or the other of the various methods above specified, constituting the different phases of the definition in law of principals.

So holding, we think the Yates Case, and each of the other cases holding this charge incorrect, should to that extent be overruled. We are not to be understood as holding incorrect the decisions in all of said cases, because in many of them the facts justified the holding that any charge on the subject of principals was not called for by the facts. We would further conclude that those opinions holding that the giving of said charge would in no case be reversible error where the unquestioned proof showed the presence of the accused at the time of the commission of the offense announce too restrictive a rule, and that the rule ought to have been stated as being that, if* the unquestioned proof showed that the accused was a principal under any phase of the statute defining principals, the charge should not be held reversible error. Mere presence of the accused does not make him a principal. Why then hold in a given case that if his presence be proven an erroneous charge would be harmless? The rule should have been as stated above, and if thé uncontradicted facts showed the appellant to be a principal in a given case the charge should have been held harmless.

From what we have said it follows that in our opinion no error was committed by the trial court in giving the charge complained of. Even if we were not correct in holding the form of said charge as given to be a correct announcement of the law of principals, it would still follow that because the uncon-tradicted testimony 'showed that at the time of the commission of the offense in the instant case the appellant was either secreted nearby, viewing the commission of the crime which he had advised, and was therefore present and a principal, or else, if absent, be was endeavoring to secure tbe safety and concealment of Osment, or Osment and bimself, by purposely removing and keeping away from the scene of the crime the daughter of deceased, who by her presence would have witnessed or prevented the crime, and this un-controverted testimony showing him to be a principal, the charge, in any event, was harmless error.

It is also urged that we erred in not holding that the testimony of Mr. Kerr, foreman of the grand jury, was inadmissible, in that portion of the same wherein he testified that the grand jury concluded that Mrs. Lewis had been killed. An examination of the record and bills of exceptions shows that this witness testified at length to the efforts made by the grand jury to ascertain how the deceased was killed, and, if the bill of exceptions be sufficient to call for our consideration, still the objection was made to all of said testimony of this witness, and as said objection and exception to all of said testimony is contained in one bill of exception the same was properly overruled. The indictment alleged that the means or instrument used in the commission of the homicide was unknown to the grand jury, 'and it became material in the trial of the 'case to show that fact, and all efforts showing the inability of the grand jury to find out how the homicide was committed and the means or instrument used was admissible. A general objection to the testimony of a witness, a part of which is material and competent, will not avail in this court.

Finding no error in our former opinion, the motion for rehearing is overruled. 
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