
    SIMPSON v. STATE.
    (No. 4478.)
    (Court of Criminal Appeals of Texas.
    May 30, 1917.
    On Motion for Rehearing, June 29, 1917.)
    1. Criminal Law c&wkey;825(4) — Instructions— Reasonable Doubt.
    In trial for cattle theft, where, although the court’s charge might have expressed the matter of reasonable doubt in clearer terms, it concluded with instruction to give defendant the benefit of reasonable doubt as to each of the matters referred to, and court further instructed that accused' was presumed innocent until his guilt was established beyond a reasonable doubt, this was sufficient, where accused presented no special charge embodying the matter in different language.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2005.]
    2. Ceiminal Law <&wkey;599 — Continuance.
    Denial of accused’s motion to withdraw his announcement of ready for trial and continue the case that he might obtain a pardon for witness whose testimony was excluded on the ground he was a convict, because accused was surprised at being informed Ms witness was a convict, was not error under Code Cr. Proc. 1916, art. 616, authorizing such withdrawal when surprise to accused satisfactorily appears; such witness’ testimony being of doubtful effect and he having been released from the penitentiary some 15 years before the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1333, 1334.]
    On Motion for Rehearing.
    3. Criminal Law <s&wkey;372(5) — Evidence of Other Offenses — Cattle Theft.
    In trial for cattle theft, where accused admitted his connection with the transaction in slaughtering the animal and participating in the sale of the hide and meat, and also participating in other similar transactions, but maintained that he was innocent of the knowledge that the cattle had neen stolen, testimony of an accomplice that he and accused were engaged in the occupation of stealing cattle and butchering them, and that the cattle involved in other offenses were stolen by him and accused, both participating in the taking, was admissible to show intent and system or course of dealings.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 833, 834.]
    4. Criminal Law <&wkey;69(5) — Principal and Accomplice.
    If a calf was stolen when accused was not bodily present, but pursuant to a conspiracy in which he performed a part in furtherance of the common design, accused would be liable as principal under Vernon’s Ann. Pen. Code 1916, art. 74, as to principals, and not an accomplice 'under article 79, as to accomplices.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 81.]
    Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    J. N. Simpson was convicted of cattle theft, and appeals.
    Affirmed.
    O. W. Howth and F. G. Vaughn, both of Beaumont, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for cattle theft, and his punishment was fixed at three years’ confinement in the penitentiary.

The evidence shows that the owner of the calf in question turned it out of a barnyard at night, and the next day its hide and a part of the meat were sold by appellant. The state’s theory and testimony was to the effect that the appellant stole the calf and brought it to the residence of P. J. Hoffman, and that he and Hoffman killed, skinned, and butchered it. Appellant’s theory and testimony was that he was an employé of Hoffman, who was in the butchering business; that he boarded at Hoffman’s house, and that Hoffman brought the calf to his own premises, and that appellant assisted in butchering it without any knowledge of it having been stolen, and that he sold the hide and the meat in the course of his emplojunent as a servant of Hoffman; that he thought that Hoffman was having butchering done at night in violation of the city ordinance; but that he did not know that Hoffman was violating any other law. Hoffman was used as a state’s witness apparently under an understanding that he would not be punished for the theft. He testified, in effect, that he and appellant were partners in tne occupation of stealing and butchering cattle, and that their method was to steal and butcher them at night and sell the hides and meat, this being done some time by one and some time by the other. He testified that the particular animal in question was stolen by appellant and brought to his (Hoffman’s) house and butchered by them both. He also testified to a number of thefts of cattle dealt with in a similar manner. There was also testimony of the sale of hides on various occasions by the appellant. Mrs. Hoffman testified that her husband was at home on the night that this animal was stolen, and that she did not go out, but late in the night heard appellant call her husband to come and help him butcher the animal. There was some evidence that appellant claimed to have had a bill of sale to the animal gotten from a negro, and I-Ioffman testified that this bill of sale was written by appellant, and that the story of tbe purchase from the negro was fabricated. There was some testimony that appellant sought to bribe a witness to swear to facts which would corroborate the theory that he had purchased the animal from the negro. All of .this was denied by appellant.

The court charged the jury on theft and the converse, and submitted appellant’s defenses, and in doing so used substantially the following language:

“If you believe the said animal was stolen from Mrs. J. A. Godwin, yet if you believe that some other person than the defendant committed such theft, and that the defendant did not participate thei'ein, and did not by word or by act give aid or encouragement in the commission of such theft, if such theft was committed, or if you shall believe that the said one head of cattle was stolen whether or not he was employed-by P. J. Hoffman, yet if you believe the defendant did not know that the said animal was stolen, then in either of the above events the defendant would not be guilty of any offense, and if you shall so find, or if you have a reasonable doubt thereof, you will acquit him.”

The court also Instructed that a conviction could not be had on the'testimony of Hoffman without sufficient corroboration. The court also gave a charge that, if appellant made an explanation of his possession of the animal which was reasonable, they would acquit, unless it was disproved, and instructed that the proof of other offenses was limited to the “intent with which, or the manner of system, in which the defendant acted with respect to the property for the theft of which he is now on trial, or as bearing upon, if in your mind it does bear upon, the credibility of the defendant as a witness”; also submitted the law of suspended sentence.

The appellant contends that the court’s charge above quoted submitting his defenses and that submitting the converse of the state’s case did not give him the benefit of the law of reasonable doubt. It is possible that this matter might have been expressed in clearer terms. However, no special charge embodying the matter in different language was presented, and the charge did conclude with instructions to give the defendant the benefit of the reasonable doubt as to each of the matters referred to in the charge. And this under the circumstances has been held sufficient in the cases of Rice v. State, 49 Tex. Cr. R. 582, 94 S. W. 1024; Adams v. State, 48 Tex. Cr. R. 456, 93 S. W. 116; Scott v. State, 46 Tex. Cr. R. 539, 81 S. W. 294, 108 Am. St. Rep. 1032. The court also in another paragraph instructed the jury that appellant was presumed to be innocent until his guilt was established by legal evidence beyond a rea-, sonable doubt, and that in case they had a reasonable doubt of his guilt to acquit him.

The error is assigned on account of the admission by the court of evidence of other offenses, and also .of failure of the court to submit to the jury the question as to whether the appellant was an accomplice, and to direct his acquittal in the event they found him to be an accomplice. The evidence of other offenses complained of were thefts of cattle on several occasions between March 20, 1916, and July 4, 1916. The evidence of these offenses came from the accomplice, Hoffman, and was to the effect that he and, appellant were engaged in the occupation of stealing cattle and butchering them and that the cattle involved in the other offenses were stolen by the witness and appellant, both participating in the taking, and that they were dealt with in a manner similar to that in which the calf upon the theft of which the indictment was founded was handled. The general rule that evidence of other offenses is not admissible is modified by exceptions that are well defined in our decisions. One of these exceptions is that, where the intent of the party charged is an issue, other similar offenses committed about the same time may become admissible upon that issue. In tbis case appellant’s intent becomes an issue from his testimony declaring that in his dealing with the animal in question he had no knowledge that it was stolen and was but an innocent agent of Hoffman. He admits his connection with it at the time it was slaughtered and his participation in the sale of the hide and the meat, and also in the participation of other similar transactions, maintaining throughout his contention of innocence of knowledge that the cattle with which he was dealing were stolen. The testimony of Hoffman was to the effect that appellant was cognizant of the theft of the animal in question and in fact was the actual taker of it, and that in dealing with it it was but one of a series of thefts conducted in the same manner and upon the same plan by virtue of a conspiracy to which appellant was a party. From this testimony the inference could be reasonably drawn that there existed an understanding between the appellant and Hoffman that the method by which they would pursue the occupation in which they were engaged would be for one or the other, or both, to steal cattle at night and butcher them at night, sell the hides and the meat, and divide the proceeds of such sales. Where the evidence raises such an issue, and there is evidence that at the actual taking of the animal the appellant was not present, other transactions of a similar nature may be proved to establish a system or course of dealing the effect of which would be to make the parties thus acting together principals in the commission of the offense. Among the eases illustrating the rule pre-

vailing in this state upon this subject is that of Mason v. State, 31 Tex. Cr. R. 311, 20 S. W. 566, from, which we take the following quotation:

“Again, it is well settled that, where it is proved that the persons charged by their act ■pursue the same object or purpose, one performing one part and another some other part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object; and under our statute such acting together woiild make all principal offenders, whether bodily present or not at the place of the offense. And they are all principal offenders when acting and together, as long as any portion of the object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Smith’s Case, 21 Tex. App. 108 [17 S. W. 552]; Willey v. State, 22 Tex. App. 408 [3 S. W. 570]; Miller v. State, 23 Tex. App. 38 [3 S. W. 573]; Collins v. State, 24 Tex. App. 141 [5 S. W. 848]; McFadden v. State, 28 Tex. App. 241 [14 S. W. 128].”

Under these authorities we think the court did not err in permitting the state to introduce evidence 'of other thefts. The acts which make one an accomplice are performed before the crime is committed. P. C. art. 79. We fail to find that in the record which requires the submission of that issue. There was evidence that he took the animal. If he did so, he was not an accomplice. There was evidence that he was not present when the animal was taken, but took part only in killing, butchering, and selling. These were acts done after the actual taking, and would not make him an accomplice. He claimed that his connection with the matter was that of an innocent employé or agent of Hoffman. This was passed on by the jury against appellant in response to a prepared charge. If he and Hoffman were members of a conspiracy the object and design of which was not completed till the cattle they were engaged in stealing were killed, butchered, and the hides and meat sold, and in furtherance of this design in which both performed separate parts to the common deed, they would both be principles and each responsible for the acts of the other in furtherance of its purpose until it was consummated. Vernon’s Penal OÓde, art. 74, and cases cited note 1, p. 37; Smith v. State, 21 Tex. App. 108, 17 S. W. 552, and other cases above mentioned; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45. This principle wras submitted to the jury in rather a meager way, but was sufficient in the absence of a request for a more specific application of the law of principals.

An exception was reserved to the refusal of the court to permit the appellant to withdraw his announcement of ready for trial and continue the ease in order that he might obtain a pardon for a witness whose testimony was excluded on the ground that he was a convict. The allegation in the motion is that appellant was surprised at the knowledge or information that the witness was a convict. It seems that the witness had been convicted of a felony and released from the penitentiary some 15 years before the trial. Article 616, O. C. P., authorizes a withdrawal of announcement “when it is made to appear to the satisfaction of the court that by some unexpected occurrence since the trial commenced, which no reasonable diligence could have anticipated, the applicant is so taken by surprise that a fair trial cannot be had.” We could hardly say that the court was in error in holding that the appellant did not show such a condition as made it incumbent upon the court under this provision of the Code to grant the withdrawal on the ground of surprise (Hippie v. State, 191 S. AV. 1150), nor do we think that the testimony of this witness was essential to a fair trial. Its purpose was to discredit Hoffman and his wife. AAihen his testimony given in the presence of the court and in the absence of the jury is examined, its effecting this purpose is made doubtful. It was not possible for the appellant to show that a pardon would be issued to the witness so as to make his testimony available by a continuance of the case. More than ten days elapsed between the time of the trial and the judgment on motion for new trial. It was not then shown that any pardon had been obtained.

Without discussing the other bills and assignments, we have carefully examined and considered them all, and find in them no reversible error, and our conclusion is that the judgment of the lower court should be affirmed; and it is so ordered.

On Motion for Rehearing.

In quite an able brief and argument appellant through his counsel, attacks the conclusion reached in the original opinion that the trial court did not err in admitting the evidence of other offenses therein described, and in the course of the discussion reference to many cases in which this court has decided that under the particular facts involved proof of other offenses was not admissible and in which the principles' upon which they are admitted are excluded in the given case are laid down. Quoting from one of these, Bink v. State, 48 Tex. Cr. R. 598, 89 S. W. 1076, we take the following:

“While proof of extraneous crimes can be made to establish system or intent, still, before such crimes can be admitted, there must bo some dispute as to the identity of appellant, or the system, or some controversy as to his intent.”

In this, as in many eases the difficulty is not in the ascertainment of the rule, but its application. If in this case there was an issue or controversy as to the intent of the appellant, and the other offenses,- by disclosing a system of conduct, tend to solve the controversy, they were within the rule admitting such evidence. That appellant assisted iu butchering ■ the animal in question at nighttime and took part in the disposition of the meat and the hide of the animal are not disputed questions. Whether he actually took the animal or was present at its taking is disputed, the state’s testimony showing that he did do it, his1 testimony denying it. He claimed to have been the employé of Hoffman and to have participated in butchering the animal and disposing of the meat and hide in the course of his employment without knowledge of the theft or intent to participate' therein.

The state’s testimony pointed to an agreement between Hoffman and appellant to engage in the business of stealing cattle, butchering them at Hoffman’s house, selling the hides and the meat, and dividing the proceeds. There was evidence that on various occasions appellant had taken part in butchering cattle at Hoffman’s house at nighttime and had sold the hides and the meat. The state’s theory was that the animal in question was stolen pursuant to such a conspiracy, and that the acts proved showing appellant took part in butchering cattle at Hoffman’s house at night, and selling hides and beef on vari-bus previous occasions, were the parts performed by appellant in carrying forward the object of the conspiracy to its ultimate purpose. To sustain this theory and show ap. pellant’s intent proof of the other thefts of cattle dealt with in the same manner as the one in question was, we think, admissible in evidence. Illustrative cases are Camarillo v. State, 68 S. W. 795; White v. State, 45 Tex. Cr. R. 602, 79 S. W. 523; Petty v. State, 59 Tex. Cr. R. 591, 129 S. W. 615.

By typographical error the original opinion described the charge submitting one of appellant’s defenses as a “specially prepared charge.” It should have said “carefully prepared charge.” It is quoted in the opinion and told the jury that although the animal was stolen, appellant’s acquittal should follow if he was ignorant of the theft, whether he was or was not employed by Hoffman. In insisting that the evidence raised an issue of accomplice, and not of principal, appellant reviews decisions noting the distinction between principal and accomplice, and stresses the point that the theft is completed upon the original taking, contending that, there being evidence that appellant was absent at the time of the taking, the court was wrong in concluding that he might nevertheless be a principal. This conclusion of the court is not a departure, but a following of the rulings of this court, as is well illustrated in Smith’s Case, 21 Tex. App. 120, 17 S. W. 552, wherein M. M. Smith was on trial and his conviction sustained, on a state of facts showing that while M. M. Smith was at home in Parker county 40 miles distant other parties fraudulently took possession of cattle in Erath county, drove them to another county, and they were subsequently driven by M. M. Smith to Tarrant county for the purpose of sale. M. M. Smith was held as a principal in the original taking of the cattle on the ground that they were taken pursuant to a conspiracy to steal them -and sell them and divide the proceeds ; his part of the conspiracy being to drive the cattle to Tarrant county and sell them after they were taken. In deciding this case the court approved the distinction between principal and accomplice as declared in Cook’s Case, 14 Tex. App. 96, and Bean v. State, 17 Tex. App. 61, and as application of the principle so stated to the facts mentioned cites the Welsh Case, 3 Tex. App. 413, Scales v. State, 7 Tex. App. 361, McKeen v. State, 7 Tex. App. 631, McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726, and Cohea v. State, 9 Tex. App. 173, and concluded with the following language:

“As before stated, evidence in proof of a conspiracy to commit crime will generally, from the nature of the case, be circumstantial. It is not necessary to prove that the defendants came together and actually agreed in terms to have that design and pursue it by common means. If it be proved that defendants 'by their acts pursued the same objects, often by the same means, one performing one part and another another part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object (Slough’s Case [C. C.] 5 Fed. 680), and under our statute such acting' together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. State, 4 Tex. App. 492; Heard v. State, 9 Tex. App. 1; Wright v. State, 18 Tex. App. 358), and they are all principals and acting' together as long as any portion or object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Hence, ‘where in larceny it was shown that the conspiracy extended as well to the dividing of the stolen goods as to the theft, what one did between the stealing and the dividing was'deemed good evidence against both.’ 2 Bish. Crim. Proc. 230, citing Scott v. State, 30 Ala. 503. This doctrine is expressly recognized and adopted by us in O’Neal v. State, 14 Tex. App. 582, and the same rule is announced in Allen v. State, 12 Lea (Tenn.) 424.
“Now in applying the law as above stated to the case in hand, if Jim and D'ave Smith were the innocent agents of M. M. .Smith, then M. M. Smith was a principal. If there was a conspiracy between all the parties to commit the theft, the part to be done by Jim and Dave being to take the property, and the part assigned to M. M. Smith being the sale after it was so taken, then all were principal offenders.”

The court’s charge in this case authorizes the conviction under the law of principals, and, after a careful review of the subject in the light of the motion for rehearing and the authorities there cited, we adhere to the conclusion reached in the original opinion that the facts authorized the' conviction of appellant as a principal’, although at the time the animal was actually taken he'was not bodily present, if it was taken in pursuance to a conspiracy in which be performed a part in furtherance of the common design.

The motion is overruled. 
      dteoFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     