
    LEAHY v. STATE.
    (No. 9510.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.)
    Criminal law &wkey;>814(19) — Charge that all principals are guilty whether actually bodily present where offense took place held reversible error, wliere defensive theory was that of alibi.
    Charge that all principals are guilty, provided that offense was actually committed during existence and in execution of common design, whether all were actually bodily present where offense took place, held reversible error, where defendant’s defensive theory was that of an alibi.
    Commissioners’ Decision.
    Appeal from District Court, Goliad County; John M. Green, Judge.
    Ed Leahy was convicted of the theft of an automobile, and he appeals.
    Reversed and remanded.
    J. Gus Patton and Fowler & Fowler, all of Goliad, and L. J. Leahy, of Mathis, and Dougherty & Dougherty, of Beeville, for appellant. ’
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is theft of an automobile, and the punishment is two years in the penitentiary. - .

The state’s testimony shows that the appellant induced two young men in the town of Goliad to take the sheriff’s car at something like 4 or 5 o’clock on the afternoon of October 28, 1924. The two witnesses to this transaction were admitted accomplices, and, if there is any testimony in this record corroborating theirs which tends to connect the appellant with the taking of this car, we have been unable to find it. The appellant’s testimony, if true, is entirely sufficient to prove an alibi. It shows, if true, beyond question that he was not in the town of Go-liad at the time the witnesses for the state claim he pointed out the car to them and told them to take it. In this condition of the record the court gavé the following charge on principals:

“All persons are principals who are guilty of acting together in the commission of an offense; and principals, whether jointly indicted or not, may be legally prosecuted as such, provided the evidence adduced against each clearly and satisfactorily establishes the guilt of each. Where an offense has been committed, the true criterion for determining who are principals is: 'Did the parties act together in the commission, of the offense? Was the act committed 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, provided the offense was actually committed during the existence and in execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground where the offense took place or not.”

Many pertinent and proper exceptions were urged to this charge. Commenting on a charge in identically the same language as that given in this ease, Mr. Branch correctly stated the rule as follows;

“The charge quoted in the preceding paragraph would be reversible error in every felony case where the defensive theory was an .alibi, * * * or where there is any evidence that defendant if guilty at all would only be guilty as an accomplice or accessory or both.” Paragraph 2, section 682, Branch’s Criminal Law, for citation of many authorities supporting the rule announced.

For the errors above mentioned, the judgment of the trial court is reversed and the cause remanded,

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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