BEAUCHAMP, Judge.
Appellant was charged with theft by false pretext and, upon allegations of prior convictions in accordance with Article 63 of the Penal Code, was given a life sentence in the penitentiary.
Appellant and three others, acting together, consummated the theft of $20,000.00 by false pretext from C. E. Goolsbee and
wife, who live in Tyler County, a distance of forty-two miles from Beaumont. In January, 1941, the appellant, under another name than Holt, appeared at the store operated by Mr. Goolsbee in the town of Warren. He made inquiry about some land which he wished to lease for oil and gas purposes, claiming to represent a Mr. Blackwell whom he said was in a hotel in Beaumont and was the very man for whom the town of Blackwell, Oklahoma, was named. He described him as being in the oil business, but an old man and not too active. He made several calls on Goolsbee, appearing with one of his co-conspirators named Ramey and introduced him by another name. Ramey soon took up the role as the chief actor in the oil deal and also in the theft for which they are charged. It is our conclusion from the testimony that the transaction regarding the lease was a hoax, having for its purpose gaining the confidence and securing the presence of Goolsbee and wife at a time and place and under circumstances favorable to the deal by which they secured the $20,000.00 as will be shown by a further statement of the evidence.
Appellant and Ramey agreed on a price for the lease, subject to Blackwell’s approval, but returned the following day and reported that Mr. Blackwell would not agree to the price. They continually called and persuaded Goolsbee and wife to go to Beaumont for the purpose of seeing Mr. Blackwell and closing the deal. Finally this purpose was accomplished. When they arrived at the hotel they saw appellant in the lobby, who told them that Mr. Blackwell was busy and could not see them for nearly an hour. He then directed that they return to Ramey’s car and remain in it, promising that he would bring • Blackwell as soon as he was available to the car and close the deal. He didn’t stay at the car nor within sight of it all of the time, but made a return trip and reported that Blackwell had come into the hotel and would buy the lease at the price which Goolsbee and wife had asked, but that he was still busy. He said further, “It will be O. K. and not later than Tuesday we will put the money in the bank to get the title fixed up.” His visit was brief, but it was during the negotiations by which the other three conspirators were extracting the money from Goolsbee and wife and while at least one of them was present. It is not in evidence that he heard what was said, but his presence there, under all the circumstances, indicates that he was at all times nearby and advised as to the progress his associates were making.
During the period of time that the parties were waiting in the car and prior to appellant’s visit to them there, an envelope supposed to contain valuable papers was planted m the gutter nearby and was discovered by Ramey, the same man who had been appearing in the town of Warren with appellant and who had theretofore assumed a leading role in pushing the deal for the lease. The papers in the envelope were examined and contained a check for $500.00, together with papers showing extensive market transactions. A man appeared on the scene looking as if he was searching for something lost. Mrs. Goolsbee asked him what he was looking for and he replied that he had lost an envelope containing papers very valuable to him. Upon being required to do so he was able to describe with exact details the contents of the envelope, thereby convincing Ramey, who was rather skeptical, together with the more credulous Goolsbee and wife, that he was the rightful owner of the papers and repossessed them. After expressing in a very gracious manner his gratitude for their kindness in giving his papers to him he tendered fifty dollars as a reward, which was refused first by Ramey and then by the Goolsbees. More compliments to southern honesty paved the way for Ramey’s suggestions that he might give them á tip on the markets. This was his weak point. He knew and was willing to do that for people like them. He even trusted Ramey with $500.00 with instructions to go into the hotel to the stock exchange, which in fact did not exist, while he remained at the car with Goolsbee. Ramey followed instructions, doubled the money and brought it back in cash to be exhibited. The profits were tendered, share and share alike, to the four of them. Ramey gave a glowing description of the stock exchange and the vast amount of money with great numbers of men and women there dressed in fine clothing. The transaction was pyramided. It was while they were waiting for the completion of another transaction that Holt appeared and, apparently for the purpose of holding the victims present while his associates completed the transaction, made his report on the return and agreement of Mr. Blackwell. Appellant’s acts and his presence were utilized for the purpose of carrying on and completing the transaction culminating in the theft of the $20,000.00. Details are not of further importance. It was accomplished. They secured the $20,-000.00 for temporary use in closing up a stock deal whereby they were to get $77,500.00, a large percent of which was to be given to the Goolsbees after the return of the $20,000.00 which they secured from their bank and placed with the parties.
Finding an excuse to recess on the deal, the parties disappeared and were located some days afterwards and arrested, developing the fact that appellant and others were going under assumed names. It also developed that they did riot represent Mr. Blackwell and if such a man lived he was not in Beaumont, or at least not in the hotel; that no stock exchange was located there; that each and everything which had been said to them by appellant and others was done for the purpose of securing by false pretense the money involved. Appellant and his wife were arrested in Houston on instructions from the Beaumont officers. She had something over Two Thousand Dollars, including two $500.00 bills which were positively identified by the serial numbers as a part of the money delivered by the bank to Goolsbee and by him to appellant’s associates. Appellant had on his person some $20.00 bills, together with a receipt showing that on the very day of the transaction by which Goolsbee lost the money he had paid $500.00 to an automobile firm in Houston. Appellant was not present when the money was actually delivered nor at any time after he reported that Blackwell had returned, that the trade would be closed and the $25,-000.00 paid to them on the following Tuesday. He did not discuss with them the stock transaction nor advise them in that respect, but there is no explanation of his visits to them and of the transaction which he had, other than the purpose which developed in the stock transaction. From the date he made his first visit to the town of Warren and on each call thereafter he was seeking to place them in position to be victimized. By his last call on them in the car while the transactions were going on, he contributed to holding them present and naturally aided in inducing them to make a quick investment of the money already on hand by his solemn promise of a delivery by a certain time of $25,000.00 for a lease on their land. He was the man who originated the transaction with them, aided in it continuously by playing into their confidence and securing their presence.
Admittedly, the transaction as described constituted the offense of theft by false pretext. (Gordon v. State, 214 S. W. 980, 85 Tex. Crim. Rep. 641; Hoovel v. State, 69 S. W. (2d) 104, 125 Tex. Crim. Rep. 545; Nichols v. State, 109 S. W. (2d) 1057, 138 Tex. Crim. Rep. 294; Maxwell v. State, 115 S. W. (2d) 939, 134 Tex.
Crim.
Rep. 314; Black, et al v. State, 149 S. W. (2d) 968.)
The question presented on the appeal, which has called for the most serious consideration, is whether or not appellant was a principal, as charged, or an accomplice. It is true that not all parties to a conspiracy may at all times be principals to a crime as contemplated. Branch’s Penal Code, Sec. 700; Burow v. State, 85 Tex. Cr. R. 133, 210 S. W. 805; Anzualda v. State, 27 S. W. (2d) 231. It will further be conceded that in order for the evidence to be sufficient to authorize the conviction under the indictment in this case there must be some testimony or circumstance sufficient to show that at the time the offense was committed by the other conspirators appellant was doing something in furtherance of their common design.
Two views may be taken of the case. One would narrow the commission of the crime to the very minute the money was delivered by Goolsbee to Ramey and the others. We think the correct view is that the time of. the crime of theft by false pretext extended from the beginning of the transaction when appellant first visited the Goolsbees until their loot was divided and that the place was in Warren, Tyler County, as well as near the hotel in Beaumont, Jefferson County. It follows from the facts of the case that appellant was personally present on several occasions, even while the parties were in waiting for the completion of the transaction by which the money was extracted from them. His return to the car and his report of the acceptance of their- offer to lease the land, together with the promise that the money would be placed in the bank in just a few days, were all factors in the commission of the offense of theft by false pretext as charged in the indictment.
The question before us is one upon which minds may not seriously differ on abstract questions of law, but from a reading of the authorities it appears that its application is not without difficulty. Judge Ramsey, in the case of Bass v. State, 127 S. W. 1020, has discussed the matter in a very appropriate way for the consideration of the case at bar in the following language:
“The testimony does raise the issue that appellant was not present at the immediate time of the killing. His own testimony, as well as that of Mrs. Garcia, is to the effect that he was some 100 yards or more from the tent at the time the guns were fired. Ordinarily this fact might raise the issue of an accomplice; but, when considered in connection with other evidence, it cannot do so. There has been much discussion in the
books of what is an ‘accomplice,’ and what is a ‘principal.’
One of the tests is that the person charged who was not present at the time the offense ivas actually committed, but that is subject to this qualification: If the party charged, though not actually present, is engaged in or is doing something in the chain of causation which leads up to• the offense a/nd is a necessary part of its accomplishment, he is a principal, though he may not be at the immediate time actually present.
Here, under the testimony of the State, it was appellant’s duty and office to go to the tent, spy out the land, locate the parties, ascertain their unprepared condition, and give signal and notice to his associates. If he did this, though he may have been 100 or 200 yards from the scene of the difficulty, he would nevertheless, under the law, be a principal. This we understand to be the clear holding of the court in the case of Dawson v. State, 38 Tex. Or. R. 50, 41 S. W. 599. It is undoubtedly the conclusion reached by Judge White in the case of Smith v. State, 21 Tex. App. 107, 17 S. W. 552, where it is said that
an accomplice is one whose acts are all performed before the commission of an offense,
while a principal may not only perform some antecedent act, but when the offense is actually committed is doing his part of the work in furtherance of the common purpose. While some of the later opinions have criticised this case on this question, the discussion by Judge White is so lucid, clear and satisfactory as to carry conviction of the correctness of this proposition.”
Again, it was said by Judge Lattimore on motion for rehearing in the case of Jones v. State, 64 S. W. (2d) 789, in discussing this same question:
“The test in such case seems to be: Were the parties acting together when the crime was committed, each doing some part in the execution of the common purpose and design? Parties evidently might be principals, though physically widely separated at the moment one or more of them strikes the blow, or breaks the house, or takes the loot. In the case before us each of the three persons charged had arranged and agreed to do his assigned part, though' only one of them was personally present and acting in the extraction of the property from the money box in which it was placed in the car. All of said parties were notified of the date when the money would be on the train, and the place and time when same should be taken. Poland, on the train when the
money
was to be carried, was to give an agreed signal indicating that the surroundings were suitable;
Bass, in possession of the key which would unlock the strong box, was to board the train, unlock the box and get the money; appellant was to be ready and nearby to carry Bass and the money to some place of safety. From this record it appears that Poland gave his signal; Bass got the money and carried it away, as the state contends, in appellant’s car and with his assistance.”
Other circumstantial evidence is quoted to warrant the jury finding that Jones, while not present when the money was taken, nevertheless, was some distance away waiting for Bass and did receive and transport him and the money. Poland was on the engine with the fireman and engineer, a distance away from and out of the view of Bass who actually committed the theft from the car, but there is no evidence that Jones was personally present or within sight of the party actually committing the theft, and that a case is presented definitely holding that where the parties acted together when the crime was committed, each doing some part in the execution of the common purpose and design, each one so acting was held to be a principal.
In accordance with the foregoing cases it is not a new doctrine to hold that Holt was properly charged as a principal. Not only had he been personally present many times and aided in operating on the victim by making false pretenses, but he was nearby when the money was actually extracted from Goolsbee; was by his act and conduct at the very time making false representations to keep them in position so that his associates could extract the money. He was playing his part at the ■ very time it was done as much so as if he had been sitting in the car with them and thus fulfilled the requirements which this court has consistently made to constitute him a principal in the commission of the offense.
Our esteemed Presiding Judge differs with the majority opinion in this case, but we again insist, as in the case of Hardie v. State, 144 S. W. (2d) 571, that there is no difference between us as to the law of principals nor as to the holding of this court on the subject. We simply differ on the application of a well understood law to the facts of the case before us and recognize that there may be frequent cases in which the distinguishment between principals and accomplices may not be made without great difficulty. The fact of our difference in
opinion, as well as the nature of the question, has caused us to read many authorities not herein referred to and to search carefully for what we believe to be the proper conclusion in the matter.
While it is not essential to hold that theft by conversion is a crime which continues beyond the instance in which the property is being actually taken in possession in order to include the acts of false pretense to meet the requirements of law in this case, it does occur to us that such is, of necessity, true. Of course, the crime would not be complete unless the money was actually taken regardless of what constitutes the false pretense. There would be no theft by false pretense without the actual taking of the property. On the other hand, it would simply be theft were the false pretenses not shown, making it essential to include within the definition of theft by false pretext both the taking and the false pretext. If this view is accepted there would be no question about the correctness of our conclusion. The facts of this case go further and show that at the very time the money was being taken appellant was nearby, playing the part which the circumstances clearly indicate were assigned to him. Such being true, it appears that we have reached the inescapable conclusion that the case comes within the doctrine laid down by Judge Ramsey in the Bass case and by Judge Lattimore in the Jones case above quoted.
Following this, which we think to be sound, it appears to be perfectly clear that appellant was properly charged as a principal. (The Smith case referred to by Judge Ramsey may also be found in 17 S. W. 552, and is enlightening.)
We have concluded that the arrest and detention of appellant and his wife as suspicious characters was justified under Article 2, Section 1542, ordinances of the City of Houston. It also justifies and makes proper the search resulting in the finding of the money heretofore referred to. (Article 325 Code of Criminal Procedure.) It appears that the statement made by Thavanow to his landlord shortly after the theft indicated a flight from the scene of the crime and was admissible.
Exception was taken to the court’s charge on the ground that the court failed to instruct the jury as to the law of principals, saying the court instructed the jury, “That they can find the defendant Bob Holt guilty if acting with others without designating who the others are.” Further complaint is made
that the charge authorizes the jury to find Bob Holt guilty, if acting alone or in conjunction with others to obtain possession of $50.00 or more, and he appropriated said money, without instructing them that the others with whom he acted must also appropriate a part. We quote from the court’s charge as follows:
“Therefore, in this case, if you find and believe from the evidence beyond a reasonable doubt that the defendant, Bob Holt, acting alone or in conjunction with others, if there were others, with common design and intent to obtain possession of the Twenty Thousand ($20,000.00) Dollars, or any sum in excess of Fifty Dollars, current money of the United States of America, from C. E. Goolsbee and Ella Goolsbee, by false pretext, and with intent on the part of him the said Bob Holt and others, if there were others, to deprive the owner of the value thereof and to appropriate said money to his or their benefit * *
The indicment in this ease charges the appellant with the commission of the offense and does not name his co-principals. Admittedly, this is sufficient to admit evidence as to others acting as principals. Had it named the co-principals and the manner by which the accused became a principal, then it might have become incumbent upon the court to so limit the charge, but under the indictment before us the rule is different. In view of the evidence which has apprised the jury in a very definite and clear manner without any reasonable contradiction as to who the other parties were, we see no helpful purpose which could be served by naming them in the charge under the indictment of this case. Neither do we see any prejudice resulting to the party on trial by the manner in which it was given. It is the customary and usual way of submitting questions to the jury to first define the law involved and then apply it to the facts of the case. This, however, seems to be merely a custom and may be a commendable one in order that all of the elements of the law be placed clearly before the jury without unduly emphasizing the evidence of the case, but where all of the elements are clearly stated without infringing upon the jury’s province to properly weigh the evidence, we have been presented with no reason for error sufficient to work a reversal of the case. It appears that the quoted section of the charge fairly does that. The authorities upon which appellant relies in his brief substantiate his contention that the court must charge on the law of principals and this we think he has done.
Complaint was made that the court did not charge the jury on the law of alibi. We find in the charge the following:
“If you have a reasonable doubt as to the presence of the defendant at the time and place of the commission of an offense, if any was committed, you will acquit him, unless you further believe and find that he acted together with others, if there are others, with common design and intent to commit the offense as alleged in the indictment.”
This charge is subject to the complaint lodged against it by the appeal. However, the evidence on the subject is as indefinite and uncertain as the charge itself. Had there been positive testimony that the appellant was at another place and not at the scene of the commission of the crime during all of the the time his co-principals were acting in the matter, this charge would be reversible error. The only evidence on the subject is to the effect that appellant was in the City of Houston on the 7th day of February, 1941, at “about” 11:30 to 12:30. The witnesses admitted that the only way they fixed the date that he was there was by receipt which they had issued to him, and that there is nothing in the receipt to indicate the hour of the day. They testified to nothing fixing the time nor is it certain that he could not have been in Houston within this period of time and also have been in Beaumont at the time the State’s testimony claimed that he was there, which was around nine o’clock in the morning. Consequently, we are of the opinion that the erroneous charge does not present reversible error under the facts of the case.
This disposes of the troublesome questions of the case. All others are overruled and the judgment of the trial court is affirmed.