
    COLLIER v. STATE.
    (No. 11190.)
    Court of Criminal Appeals of Texas.
    Nov. 23, 1927.
    1. Criminal law <§=»780(l), 1173(2) — Failure to instruct that persons jointly indicted with defendant were.accomplices as matter of law held error, requiring reversal (Code Cr. Proc. 1925, art. 711).
    Persons jointly indicted with defendant for theft, not being competent witnesses for him, because of Code Cr.,Proc. 1925, art. 711, nor against him, because of the indictments, were accomplices as matter of law, and it was error,, while indictments were still pending against, them, to submit to jury question whether they were accomplices, and to fail to instruct that they were accomplices as matter of law.
    2. Criminal law <&wkey;62 — Instruction that one using innocent agent to consummate theft was principal, regardless of agent’s knowledge of principal’s fraudulent intent, held error.
    Instruction, in theft prosecution, that one using an innocent agent to consummate offense was a principal, whether or not agent knew of fraudulent intent of principal, held erroneous, since it would permit conviction of defendant, even if he were only, an accomplice.
    Commissioners’ Decision.
    Appeal from District Court, Eastland, County; Elzo Been, Judge.
    Robert Collier was convicted of theft, and he appeals.
    Reversed and remanded.
    Chastain & Judkins, of Eastland, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, theft of oil well pipe of over the value of $50; punishment, two-years’ confinement in the penitentiary.

The testimony- for the state shows that appellant employed one Red Phelan to haul oil: well pipe from a point south of Cisco, in, Eastland county, to Breckenridge, where it was subsequently taken to Albany, in Shack-elford county. Phelan: in turn procured the-services of E. E. Bryant to assist him in the-hauling. Two truck loads were brought away and delivered at Albany. Appellant, Phelan, and Bryant were all indicted for the taking of this pipe, and Bryant and Phel-an were under such indictments when they testified in the trial of this case against appellant.

The court in his charge submitted the question of whether or not said Phelan and Bryant were accomplices as an issue to be found by the jury. Proper exceptions were reserved to this part of the court’s charge; the appellant contending that they were each accomplices as a matter of law, and that same was not an issue for the jury, but that the court should have charged directly that they were in law accomplices.

Article 711, C. C. P., provides, in substance, that persons charged as principals, accomplices, or accessories, whether in the same or in different indictments, cannot be introduced as witnesses for one another. The appellant would have therefore been precluded from using either of said parties as a witness in his behalf by virtue of said article last quoted. The state, having cut off this right from appellant by reason of said indictments, could not thereafter use the said witnesses against appellant, and have submitted as an issue in the trial their guilty connection with the crime charged while said indictments were still pending against them. They were accomplices as a matter of law, and the court should have in this case so instructed the jury, and his failure to do so was reversible error. Grissman v. State, 93 Tex. Cr. R. 15, 245 S. W. 438; Lowe v. State, 98 Tex. Cr. R. 501, 267 S. W. 270, and authorities there cited.

The court instructed the jury, at the request of the state, in substance, that one using an innocent agent to consummate the offense of theft was a principal, “whether or not the agent at the time of taking did or did not know of the fraudulent intent, if any, upon the part of the person so employing said agent.” The quoted part of said charge is not the law of this state. Obviously, a party could not be an innocent agent and at the same time know that he was being employed to commit a theft. Mr. Branch states the law as follows:

“If defendant fraudulently procured a person innocent of any fraudulent intent to take the property for him, it is a taking through an innocent agent and a taking by the defendant.” Branch’s Penal Code, § 2428.

See, also, Sikes v. State (Tex. Cr. App.) 28 S. W. 688; Lane v. State, 41 Tex. Cr. R. 558, 55 S. W. 831; Houston v. State, 98 Tex. Cr. R. 280, 265 S. W. 585.

The above charge was given, undoubtedly upon the state’s theory that appellant had employed Phelan and Bryant as his innocent agents to consummate the, theft. If Bryant and Phelan acted for appellant, knowing his fraudulent and unlawful intent, they were ’ guilty as principals, and, if in such case appellant was not present nor doing anything in furtherance or aid of the criminal act of the said parties, when committed, he would be an accomplice only, and under such facts could not be convicted on this indictment which charges him only as a principal. Branch’s Penal Code, § 724. It is apparent, however, that he might have been convicted, even if he were only an accomplice under the terms of said quoted charge.

For the errors above discussed, the judgment is reversed, and the cause remanded.

PER OURIAM. 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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