BROOKS, Judge.
Appellant was convicted as accessory to murder, and his punishment assessed at confinement in the penitentiary for life.
The record shows that in November, 1894, in Hemphill County, Texas, one Tom T. McGee was killed. A short time after the killing George Isaacs was arrested, and incarcerated in jail, charged with being an accomplice to the murder of McGee. Subsequently he was indicted by the grand jury of Hemphill County, the indictment charging him as a principal and as an accomplice with Jim Harbolt and Joe Blake in the killing of McGee, and as an accomplice to persons to the grand jury unknown in the killing of McGee. In October, 1895, on a change of venue to Hardeman County, Isaacs was tried and convicted, the jury returning a general verdict finding him guilty of murder as charged in the indictment, without determining whether they found him guilty as principal or as an accomplice, assessing his punishment at confinement in the penitentiary for life. The evidence upon the trial of Isaacs showed that at the time of the homicide Isaacs was not present and participating in the same, but that his connection was as a party to the conspiracy between himself and the above-mentioned parties, and probably others, to hold up and rob a train at Canadian, Texas, the scene of the homicide; and in the attempted perpetration of said robbery McGee was killed. For a further and more detailed
statement of the evidence on the trial of Isaacs, see Isaacs v. State, 36 Texas Criminal Reports, 505. After the conviction of Isaacs, he was duly sentenced and incarcerated in the State penitentiary at Rusk, Texas. About the 27th day of September, 1899, a pardon was received at the Rusk penitentiary, by the authority of which George Isaacs was released from the penitentiary. The evidence shows that appellant, Dent, forged the.pardon, which forgery shows intimate knowledge on part of appellant of Isaacs’ guilt. The indictment for accessory to murder is predicated upon the foregoing state of facts, in that by said forged pardon appellant aided Isaacs to evade the execution of his sentence.
Appellant presented the following motion to quash the indictment: “Defendant excepts to the indictment filed against him, and says the same charges him with no offense against the laws of the State. Defendant specially excepts to the first count in said indictment because the same does not charge any act that was done by defendant or any means used by defendant in the perpetration of any offense. Nor does it set out any means used by defendant in assisting or aiding the said George Isaacs. In fact, said count of the indictment does not allege any facts, matters, circumstances, act, or anything else to give notice to this defendant of what was expected to be proved against this defendant by the State.” Appellant’s main insistence seems to be that the first count of the indictment is defective, in that it does not charge any act done by defendant or any means used by defendant in the perpetration of any offense. An indictment similar to the first count here has been held good in Gann v. State, 42 Texas Criminal Reports, 133, and, without further discussion of the matter, we refer to that case. We think the count is good. Even conceding the first count is insufficient, yet in view of "the fact that the verdict of the jury against appellant is general, and that the second count does specifically state the means used by appellant in aiding his principal, George Isaacs, to evade the execution of his punishment, the supposed error becomes harmless. Pitner v. State, 37 Texas Crim. Rep., 272; Henderson v. State, 2 Texas Crim. App., 88; Southern v. State, 34 Texas Crim. Rep., 144.
Appellant’s next contention in his able brief is based upon his seventh bill of exceptions, to wit: “The court erred in admitting in evidence the certified copy of a judgment of conviction of murder in the first degree in cause No. 334 (State of Texas v. George Isaacs), from the District Court of Hardeman County. The district attorney announced this copy of judgment was introduced for the purpose of proving the guilt of George Isaacs of the murder of Tom T. McGee, as charged in the indictment against defendant, Dent. Appellant contends that, if said judgment was admissible at all, it could only be for the purpose of proving George Isaacs, the principal, had been tried and convicted, in order to comply with article 90, Penal Code, and was clearly inadmissible, and in violation of section 10 of the bill of rights and the sixth amendment to the Constitution of the United States.” To sup
port appellant’s position, he cites ns to Cline v. State, 36 Texas Criminal Reports, 320, and to Kirby v. United States, 174 United States, 47, 19 Supreme Court, 574, 43 Lawyers’ Edition, 890. We do not think the case of Cline v. State, supra, is at all in point on the question here involved. In Kirby’s case, supra, the court was considering the following matter: Under the act of Congress of March 3, 1875, it is provided, where one is convicted of feloniously stealing stamps and carrying them away from the postoffice, and upon a subsequent trial of a third party for receiving said stamps, the judgment of conviction of the principal shall be conclusive evidence against said receiver that the property of the United States therein described had been embezzled, stolen, and purloined. Justice Harlan, delivering the opinion of the court, held that the provisions of the statute violated the clause of the Constitution of the United States which declares that in all criminal prosecutions the accused shall be confronted with the witnesses against him. By the facts it appears that Wallace, Baxter, and King (the first ■two upon pleas of guilty, and the last upon trial) had been adjudged guilty of the theft of stamps from the United States postoffice. In the trial of Kirby for receiving said stolen property the judgments against the three first-named parties were introduced in evidence under the terms of the above quoted statute. Justice Harlan said: "As heretofore stated, the crime charged against Wallace, Baxter, and King, and the crime charged against Kirby were wholly distinct; none the less so because in each case it was essential that the government should prove that the property described was actually stolen. The record of proof of a vital fact in one prosecution could not be taken as proof in the other of the existence of the same fact. The difficulty was not met when the trial court failed, as required by the Act of 1875, to instruct the jury that the record of the conviction of the principal felons was conclusive evidence of the fact that the property had been actually stolen, but merely said that such record made a prima facie case as to such fact. The fundamental error in the trial below was to admit in evidence the record of the conviction of the principal felons as competent proof for any purpose. That those persons had been convicted was a fact not necessary to be established in the case against the alleged receiver; for, under the statute, he could be prosecuted even if the principal felons had not been tried or indicted.” From the excerpt quoted, and after a careful perusal of the entire opinion, it will appear that the Kirby case is not in point upon the question here at issue, since, as said by Justice Harlan, one can be convicted of receiving stolen property before indictment or conviction of the thief. We see another distinction between the Kirby case and the one at bar in this: The judgment of conviction of the thief would be evidence solely of the fact that Wallace, Baxter, and King had stolen some stamps; but said judgment, after its introduction, would not be any evidence going to show that the stamps so stolen by them were the stamps that Kirby was alleged to have received, knowing them to have been stolen. But in the
case at bar, if Isaacs killed McGee, the judgment adjudges him guilty of that offense, and the evidence in this case shows appellant aided Isaacs to escape the execution of his sentence for the murder of McGee. We do not understand that the Supreme Court of the United States in the Kirby Case, supra, were passing upon the ordinary doctrine of accessory after the fact, or the character and kind of proof necessary to make out a conviction of the accessory. The receiver of stolen property is not an accessory, as ordinarily understood, since the guilt of the receiver does not depend in any sense upon the guilt or conviction of the thief. Be this as it may, if Kirby’s case be correct, that the judgment of conviction of the principal in the trial of an accessory is not admissible for any purpose, as a casual reading of the decision might indicate, then we say that said authority is so at variance with the long line of precedents on the subject that we can not follow it.
We do not think the decision in the Kirby case, supra, applies to the introduction of the judgment against Isaacs in this case. We think the question considered by the court in the Kirby case is altogether at variance with the question before us in this case. Appellant concedes in his argument that the judgment is admissible for the purpose of showing that Isaacs, the principal, has been tried and convicted in order to comply with article 90, Penal Code. We apprehend appellant would further concede the judgment was admissible as a predicate for a charge on the part of the trial court as to the punishment that should be inflicted upon the accessory after the fact, since article 88, Penal Code, provides: “Accessories to offense shall be punished by the infliction of the lowest penalty to which the principal in the offense would be liable.” Now, if the principal has not been convicted, it is proper to introduce testimony showing the guilt of the principal as a predicate for the prosecution of the accessory after the fact, as was properly held by us in Poston v. State, 12 Texas Criminal Appeals, 409. And here we will remark that appellant seems to rely with some degree of strenuousness upon this case as authority -for his position here. The principal in the Poston case had never been convicted, so far as the record shows, and certainly then the facts would be admissible going to show the guilt of the principal in a proper prosecution of the accessory. Then the sentence of the principal, as stated above, would be admissible, as a predicate upon which the trial court would base a charge as to the amount of punishment to be inflicted by the jury upon the accessory. This fact is made apparent by the following statement: If the principal has been acquitted, the accessory can not be prosecuted. If the principal has been acquitted of either degree of homicide, or both of the higher degrees, to wit, murder in the first and second degrees, and convicted of manslaughter, then we take it that the accessory could be convicted of no higher degree of offense than the principal had been convicted. Therefore, although the evidence upon the trial of the case might show that the principal was guilty of a higher grade of offense than he had previously been convicted of, yet appellant would be entitled
to a charge from the court telling the jury that they could not convict him of a higher grade of offense than the principal had been convicted. We therefore hold that the judgment was admissible in order to show the conviction of the principal as authorized by article 90, and also as a predicate for the charge or the part of the trial court, as we construe article 88, Penal Code. If this were an original question, we would hold, as ably contended by the State, and as charged by the trial court, that the verdict of the jury and judgment and sentence of the District Court of Hardeman County are conclusive proof of the guilt of Isaacs of the murder of Tom T. McGee. But we have searched in vain for authority supporting this position. In Broxton v. State, 9 Texas Criminal Appeals, 97, we held, where the court below instructed the jury that a certain indictment and capias put in evidence by the State were sufficient proof to establish the allegation contained in the indictment that P. A. Lattimore, the person described in said indictment and capias, was confined on an accusation of felony, was a correct charge, and not on the weight of the evidence, and was a proper explanation of the legal effect of the records of the court. In this case appellant appears to have been prosecuted for prison breach, and we merely cite same as authority supporting the proposition that it is the imperative duty of the trial court to give the jury a rule as to the probative force of judgments and sentences in cases of this character. In Arnold v. State, 9 Texas Criminal Appeals, 438, we used the following language: “The principals not being tried and convicted, so that the record of their conviction could be introduced to establish their guilt, the State was required to prove their guilt in the same manner and to the same certainty as if they themselves had been upon trial, for their guilt must be shown before the accomplice can be legally convicted.” We think the inference from the latter case is thoroughly fortified by reason, and is in strict line and consonance with the proper presentation of the evidence going to show the accessory’s guilt. If the principal has not been convicted prior' to the conviction of the accessory, when evidence is introduced to prove the principal’s guilt in the trial of the accessory it is to demonstrate but one fact,—not any culpability on the part of the accessory in the original crime, but simply and solely to prove the guilt of the principal, and from said guilt to erect one circumstance going to show the accessory’s guilt, which alone is predicated upon knowledge of the guilt of the principal. This knowledge, as contemplated by article 86, Penal Code, does not carry with it the idea of full, perfect, and absolute consciousness of all the salient features of the evidence going to show the principal’s guilt. But, as stated above, this is not now an original question. The courts of last resort all over the Hnited States have held that the judgment of conviction of the principal upon the trial of the accessory is merely prima facie evidence of the guilt of the principal; and that said judgment, although admissible in the trial of the accessory, may be combated by evidence on the part of the accessory, and the absolute innocence of
the principal demonstrated, and ultimate thereby in the acquittal of the accessory. 1 Rosc. Crim. Ev., p.
279;
Whart. Crim. Ev., 519, 602; 2 Bish. Crim. Proc. sec. 12; 1 Bish. Crim. Law, secs. 667, 668; 1 Am. and Eng. Enc. of Law, 270; Lynes v. State, 36 Miss., 617; Anderson v. State,
63 Ga., 675;
State v. Mosley, 31 Kan., 355, 2 Pac. Rep., 782; State v. Chittem, 2 Dev. Law, 49; Commonwealth v. Knapp, 10 Pick., 477, 20 Am. Dec., 534; Baxter v. People, 7 Ill., 578; People v. Buckland, 13 Wend., 592; Levy v. People, 80 N. Y., 327; People v. Gray, 25 Wend., 465; Keithler v. State, 10 Smedes
&
M., 192; State v. Crank, 23 Am. Dec., 117; State v. Duncan, 6 Ired., 98.
Then, in conclusion upon this matter, we will say that a judgment and conviction of Ishacs makes out a prima facie case as to the guilt of said Isaacs under the above-cited authorities; and the only remaining question to be considered is whether or not appellant is guilty, knowing that an offense has been committed, of aiding said Isaacs to escape the execution of his sentence. In the case of Tully v. Commonwealth, 13 Bush, 143, the court said: "It is sufficient that appellant has good reason to believe Osborne was guilty of the murder charged, and was fleeing from justice, to render the aid or comfort given himvunlawful. It was not necessary to prove that he had actual knowledge of these facts.” Nor do we think it necessary for the accessory after the fact to have absolute knowledge or actual knowledge of all the facts going-to show the criminality of Isaacs. If so, then the State in this case would be without evidence upon which to base a valid prosecution. Isaacs was tried, convicted, and sentenced, and incarcerated in the penitentiary long before the record shows any knowledge on the part of defendant, Dent, of said facts. Then, is it possible to say that the rules of evidence require the facts going to show the accuracy of said conviction to be introduced on the trial of Dent, when the introduction of said facts does not bring home with any greater or fuller force knowledge of said conviction to Dent than the judgment introduced upon the trial of this case? Whart. Crim. Law, sees. 237, 242, 244; White v. People, 81 Ill., 333.
The court charged the jury as follows: "These records [that is, the judgment, sentence, and indictment of Isaacs] are admitted alone for the purpose of proving that George Isaacs was guilty of the murder of Tom T. McGee, as charged in the indictment in this case, and you will not consider this evidence for any other purpose than that for which it was admitted; that is, for the purpose of proving George Isaacs to have been guilty of murder in the first degree, as charged in the indictment against him, as determined by the judgment of the Hardeman County District Court. You are instructed that said records are conclusive proof of the conviction and guilt of George Isaacs, of murder in the first degree, and of the murder of Tom T. McGee by said Isaacs.” We think the court erred in this charge. It was the duty of the court to tell the jury that the records introduced (naming them) were prima facie proof of the conviction and guilt of George Isaacs of the murder
in the first degree of Tom T. McGee, and not conclusive proof of said fact. Floeck v. State, 34 Texas Crim. Rep., 314. But, in view of the fact that appellant introduced no evidence, we are then confronted with the proposition as to whether the error of the court was calculated to injure the rights of appellant. We have searched in vain for a distinction between evidence that makes out a prima facie case that is uncontroverted and a charge to that effect and a charge that says said evidence is conclusive. If the jury in this case had been told by the court that the records were prima facie evidence of the guilt of Isaacs, could there be any controversy over the fact that they would have concluded under the evidence before them that defendant was guilty? We think not. Then certainly, under the mathematical aphorism that “things that are equal to the same thing are equal to each other,” we think it can be accurately stated that this charge was not calculated to injure the rights of appellant. So believing, we do not think appellant is entitled to a reversal. Barnett v. State,
42
Texas Crim. Rep., 302, 2 Texas Ct. Rep., 447; Johnson v. State, 42 Texas Crim. Rep., 87.
Appellant filed a motion for continuance for want of the testimony of J. J. Sutherland and Fred Hasbrugh, by whom he proposed to prove that Isaacs was not present at the time McGee was killed, but was half a mile away. The court did not err in refusing this application, since we do not think it shows diligence. But, even conceding it does, we do not think the testimony is material, or probably true, in the light of the record before us. An inspection of the case of Isaacs v. State, 36 Texas Criminal Reports, 505, and the statement of facts before us in this case, wherein a certified copy of the mandate of the Court of Criminal Appeals in said case was introduced, which affirmed the judgment convicting said Isaacs of murder in the first degree; and also the indictment against George Isaacs as contained in the record before us, and the verdict of the jury thereon,—all show that said Isaacs was indicted both as a principal and accomplice to murder, and the verdict of the jury was general, thereby making no direct application of the guilt of Isaacs to either count in the indictment. This being true, the testimony becomes immaterial, because, under the indictment against Isaacs, he may have been guilty and still have been half a mile away, and is proposed to be proven by said witnesses. If said witnesses had been present and testified as indicated in said application, would it have probably affected the result of this case? We think not. Furthermore, we do not think said testimony was material upon another phase. An inspection of the forged pardon, as contained in the statement of facts, shows that defendant therein states, “George Isaacs had been adjudged guilty of the offense of murder, and his punishment assessed at confinement in the State penitentiary for life; and whereas, the said murder consisted in his being charged as an accessory to the commission of the crime of murder,”—thus showing that appellant, at the time he forged said pardon, knew that Isaacs was convicted as an accomplice to mur
der, or believed he was. Therefore we conclude that the testimony of the absent witnesses was not material in the light of this record, and would not probably have changed the result of the trial if the absent witnesses had been present and testified as alleged by appellant.
Appellant also contends the court erred in its charge in failing to define what constitutes an accessory, or what constitutes murder in the first degree. The court applied the law directly to the facts. We commend this as the best practice. Wagner v. State, 35 Texas Crim. Rep., 257.
He also contends the court erred in charging the jury that the venue was- properly laid in Cherokee County. The proof shows appellant acted through an innocent agent in having Isaacs .released from the penitentiary upon the forged pardon, which pardon was used in Cherokee County for that purpose, Isaacs being confined in the penitentiary in said county. We think this properly places the venue in Cherokee County for the trial of the accessory, Dent. Sikes v. State (Texas Crim. App.), 28 S. W. Rep., 688; Carlisle v. State, 31 Texas Crim. Rep., 537.
It may be contended that the facts 'in this case do not make appellant an accessory under article 86, Penal Code. We think the evidence is sufficient. It makes no difference whether appellant enabled Isaacs to escape all of his punishment or not. It is not necessary, in order to constitute one an accessory, that he should enable the principal to escape permanently part of all of his punishment. This question is very satisfactorily settled in favor of the proposition just announced in Wren v. Commonwealth, 26 Grattan, 952. There it was held that any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make one an accessory after the fact,—as that he conceals him in the house; or shut the door against his pursuers until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse, or other necessaries in order to enable ’him to escape; or that the principal was imprisoned, and the jailer was bribed to let him escape, or conveyed to him instruments to enable him to break the prison and escape. True, the test as there laid down as to whether one is an accessory after the fact or not was whether or not the accessory furnished aid by way of personal help to his principal with the view of enabling his principal to elude punishment; the kind of help rendered appearing unimportant. By carefully reading this case it will appear that the common law authorities on the subject are collated by the court; among others: 2 Hawk, P. C., chap. 29, par. 32; 4 Bl. Comm., 37; 1 Hale, P. C., 322, 622; 3 P. Wms., 496. But we are not without authority on this, question in our own State. The question is thoroughly discussed in Blakely v. State, 24 Texas Criminal Appeals, 616. See also Schackey v. State, 41 Texas Crim. Rep., 255.
We can not close this opinion without testifying to the very able and matchless way in which the appellant’s counsel and the able Assistant
Attorney-General have presented their respective sides of this case. Their research has been tireless, and all the authorities have been reviewed by them in a painstaking effort to solve the many vexing questions involved in this record, and we can not too strongly commend them.
We have carefully reviewed all of appellant’s assignments of error, and to no case have we given more investigation than the one now before us. We feel constrained to say there has been no such error committed as was calculated to injure the rights of appellant, and that the verdict of the jury is amply sustained by the evidence adduced.
The judgment is affirmed.
Affirmed.
Henderson, Judge, dissents.