
    MARTIN v. STATE.
    (No. 4685.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1917.)
    1. Arson &wkey;>45 — Accomplices to Arson — Suspension of Sentence.
    “Accomplice to arson” is not “arson” within Act 33d Leg. c. 7, § 1 (Vernon’s Ann. Code Cr. Proc. 1916, art. 865b), denying suspension of sentence in convictions for arson, and where the verdict on trial for “accomplice to arson” so directs, a suspended sentence should he granted.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Arson.]
    2. Criminal Law i&wkey;1188 — Appeal—Suspension of Sentence.
    Where the lower court has wrongfully refused’to suspend sentence in accordance with the verdict, the sentence on appeal will be reversed, with instructions to enter judgment suspending the sentence and take accused’s recognizance and discharge him.
    Appeal from District Court, Mills County; F. M. Spann, Judge.
    Harry H. Martin was convicted for accomplice to arson, and denied suspension of sentence, and tie appeals.
    Reversed, with directions to suspend sentence.
    J. C. Darroeh and L. E. Patterson, both of Goldthwaite, and Wilkinson & McGaugh, of Brownwood, for appellant. E. B. Hendricks, Asst. Atty. Gen.; for the State.
   PRENDERGAST, J.

Appellant was convicted for accomplice to arson, and the jury assessed his punishment at the lowest prescribed by law at the time of the trial, and recommended his sentence be suspended.

In one count appellant was indicted as an accomplice to arson — the arson committed by Raymond Williams and Otis Allen. In another count as an accomplice of an attempt of arson by the same persons. He properly pleaded for a suspended- sentence. The court submitted to the jury both of said counts for a finding, and also the law of suspended sentence as applicable to each. The jury found him guilty under the first count, and also in their verdict properly recommended that his sentence be suspended. After the verdict the judge concluded that the suspended sentence could not be applied to a conviction for said offense of accomplice to arson, and thereupon declined to enter a judgment suspending the sentence, but instead entered judgment and sentence imposing confinement in the penitentiary for the term of years found by the jury.

The act of 1913, p. 8, § 1, art. 865b, Vernon’s Crim. Statutes, provides that when there is a conviction of felony, except, among others, for arson, and the penalty imposed is five years or less, the court shall suspend the sentence upon the recommendation and finding of the jury to that effect. This article does not except accomplice to any offense. There is no separate offense prescribed by our law as an “accomplice,” but there is an offense of an “accomplice” to most crimes. An accomplice to any given offense must be specifically indicted as such. 1 Branch’s Ann. P. G. § 724, and authorities noted. No person indicted as a principal for any offense can be convicted as an accomplice to such an offense; and vice versa, no person indicted as an accomplice of any given offense can be convicted as a principal therein. Arson is one offense and an accomplice to arson is an entirely separate and distinct offense. Crook v. State, 27 Tex. App. 243, 11 S. W. 444; Kaufman v. State, 70 Tex. Cr. R. 447, 159 S. W. 58. As an accomplice to arson wás not one of the excepted felonies where a suspended sentence was not applicable, the court clearly erred in entering a sentence imposing imprisonment in the penitentiary on appellant, and in not suspending his sentence.

Perhaps the trial court was misled in this matter by an .expression by Judge Hurt in Carlisle v. State, 31 Tex. App. 546, 21 S. W. 358, wherein he, in one sentence, said:

“In this state there is no distinction between the punishment of an accomplice and a principal. Why? Because the crime is the same.”

The sole question decided and discussed in the Carlisle Case was the question of venue. In that case murder by Carlisle’s principal was committed in Grayson county. Carlisle was not a principal therein, but an accomplice of the murder, and at the time of the murder was not in Grayson county, but in another county. The court held that the accomplice could be prosecuted in Grayson county where the murder was committed of which he was an accomplice.

In the construction and application of our suspended sentence law statute,' and the proceedings in this court when the lower court has wrongfully refused to suspend the sentence in accordance with the verdict, this court has reversed the sentence, with instructions to the lower court to enter the judgment suspending the sentence, take the accused’s recognizance, and discharge him. Baker v. State, 70 Tex. Cr. R. 618, 158 S. W. 998; Martin v. State, 71 Tex. Cr. R. 212, 158 S. W. 994; Brown et al. v. State, 71 Tex. Cr. R. 212, 158 S. W. 807. We now adhere to that procedure, and reverse said sentence, and instruct the lower court to enter the proper judgment suspending the sentence, and discharge him on his own recognizance, in accordance with the verdict and law.

Reversed, with instructions. 
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