HURT, Presiding Judge.
Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal. The indictment contains three counts. The first count charges appellant as a principal; the second charges Jim Harbolt with the murder as principal, and the appellant, as not being present, advising or encouraging Harbolt to commit the murder—in other words, charges the appellant as an accomplice to Harbolt in the murder; and the third count charges him as an accomplice to the murder of McGee, committed by some person, to the grand jurors unknown. Theie is a general verdict of guilty, without stating upon which count the verdict is based. This is sufficient, and the verdict can be applied to the count sustained by the proof. It appears from the record that appellant, in Kansas City, Missouri, purchased a large number of small currency bills, and placed them in five packages. The packages were sealed up, each marked $5000, and were placed with the agent of the express company at Kansas City, for shipment to Canadian, in Hemphill County, Texas. When the train carrying the money arrived at Canadian, it was dark, and the deceased, McGee, had been requested by the agent to be' at the depot (he being informed of the fact that the company had in its possession the money above alluded to). McGee was at the depot, and, as he stepped out of the door of the of
fice, saw a man, and hailed him, and.stated he wanted to see him, whereupon the strange man began firing upon him, and at the same time shots were fired from several different directions at McGee. McGee was killed. Isaacs confesses that he purchased the small bills; that he had placed them in five different packages; that he had marked each as if it contained §5000, and placed them with the express company at Kansas City, to be shipped to Canadian, Texas; that he entered into the conspiracy and agreement with Jim Stanley, Bill Doolan, and two other parties; that they came to his house, in the Indian Territory, and proposed to furnish defendant with money for him to go to Kansas City, and ship the money to Canadian, Texas, indorsing on the packages so shipped, a much larger amount than they really contained; that defendant suggested to Stanley that it would be better for him (defendant) to ship some cattle to Kansas City, and get the money that way, and ship it out. It was further agreed that defendant was to ship the money, and Stanley was to rob the train between Higgins and Canadian. Defendant said that he was a poor man, and, having no money, agreed to this; that there were two or three talks, between themselves, about this matter. Defendant said that he did not know for certain who was at Canadian except Stanley, that Stanley was to get the men to do the robbing; that he (defendant) was to leave with said cattle for Kansas City about the 20th of November. Defendant further stated that he did nearly all of this talking with Stanley, but that Bill Doolan was with them; that, in accordance with this agreement, he shipped the cattle to Kansas City, got the money, went to the express office, got the envelopes, ascertained the rate on money, paid the express charges, amounting to about §30; that he shipped it in five packages to Canadian, and marked each of them §5,000; that he put §100 in each package, making §500 in all; that he got on the same train which carried out this express, and came with it to Canadian; that he expected the train to be robbed between Higgins and Canadian, and after passing Higgins and getting near Canadian, he felt uneasy, for fear that something had miscarried. The description given by appellant of Jim Stanley, Bill Doolan, and the other two men, coincides with the description given by the other witnesses of these parties. At the time of the shooting, appellant was in the hotel, which is situated about 250 or 350 yards from the depot at which the shooting took place. The State’s theory of the case is, that Stanley, or perhaps Doolan, or Harbolt, did the killing, in the attempted perpetration of robbery. It is not necessary for us to decide whether appellant was a principal or an accomplice. It is evident that he was, at least, an accomplice to the murder. We have his confessions to that effect. Now, to convict under this indictment, proceeding upon the theory that he was an accomplice to the murder, the State must prove that Harbolt or some person with whom appellant conspired to commit the robbery killed the deceased. It is not necessary to prove that the person or persons killing the deceased entered into a conspiracy or agreement with the appellant to rob the express company. If those with
whom he conspired employed others to attempt the robbery, appellant is responsible to the same extent as if he had made the agreement with them himself. Having set in motion that which resulted in the death of the deceased, he would be an accomplice to any person, whether instigated by himself directly, or whether instigated by those with whom he had conspired. Having positive proof that he had entered into the conspiracy to rob the express company, the next question that presents itself is this: Is there positive proof that some person killed McGee (the deceased), in the attempt to rob the express company, who was a co-conspirator with the defendant, or who had been employed by those with whom appellant had conspired. Tulsey Jack confessed to McKenzie that he was present at the homicide. McKenzie testified: “While talking about the death of McGee, Tulsey Jack asked me what I had heard about it. I told him I had heard it two or three different ways, and he said, ‘Yes; so have I.’ They claimed that there were seven or eight of us at Canadian, who robbed the train, but didn’t any of them have it right. There was only four of us. Three went up to the depot, and Joe Blake stayed back with the horses. He said that son-of-a-bitch, George Isaacs, tried to swindle them and the railroad company, too; that he promised to ship $5000, and sent only $500.” The real name of Tulsey Jack was Will Blake. If this confession be true, then the State has positive proof that Blake, alias Tulsey Jack, was present when McGee was killed; that he was there for the purpose of robbing the express company of the money deposited with it by appellant at Kansas City for shipment. The next question arising is: As the appellant, in his confession, does not name Tulsey Jack as one of the conspirators, have we positive proof that Tulsey Jack was a co-conspirator with appellant, or that he was employed by some of those with whom appellant had conspired, to-wit: Jim Stanley, Bill Doolan, or others? If there is no positive proof of this fact, then this is a case depending upon circumstantial evidence, because we might concede that there is positive proof that Tulsey Jack was present and a principal in the killing of the deceased; but, if the proof fails to connect appellant with those who did the killing, he is not responsible for the homicide, though he had conspired with Stanley, Doolan, and others to rob the express company. We do not wish to be misunderstood. If appellant entered into a conspiracy with Jim Stanley, Bill Doolan, and others to have the train robbed, and they- attempted to rob the train, and, in doing so, killed McGee, appellant would be guilty of the murder.
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HURT, Presiding Judge.
Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal. The indictment contains three counts. The first count charges appellant as a principal; the second charges Jim Harbolt with the murder as principal, and the appellant, as not being present, advising or encouraging Harbolt to commit the murder—in other words, charges the appellant as an accomplice to Harbolt in the murder; and the third count charges him as an accomplice to the murder of McGee, committed by some person, to the grand jurors unknown. Theie is a general verdict of guilty, without stating upon which count the verdict is based. This is sufficient, and the verdict can be applied to the count sustained by the proof. It appears from the record that appellant, in Kansas City, Missouri, purchased a large number of small currency bills, and placed them in five packages. The packages were sealed up, each marked $5000, and were placed with the agent of the express company at Kansas City, for shipment to Canadian, in Hemphill County, Texas. When the train carrying the money arrived at Canadian, it was dark, and the deceased, McGee, had been requested by the agent to be' at the depot (he being informed of the fact that the company had in its possession the money above alluded to). McGee was at the depot, and, as he stepped out of the door of the of
fice, saw a man, and hailed him, and.stated he wanted to see him, whereupon the strange man began firing upon him, and at the same time shots were fired from several different directions at McGee. McGee was killed. Isaacs confesses that he purchased the small bills; that he had placed them in five different packages; that he had marked each as if it contained §5000, and placed them with the express company at Kansas City, to be shipped to Canadian, Texas; that he entered into the conspiracy and agreement with Jim Stanley, Bill Doolan, and two other parties; that they came to his house, in the Indian Territory, and proposed to furnish defendant with money for him to go to Kansas City, and ship the money to Canadian, Texas, indorsing on the packages so shipped, a much larger amount than they really contained; that defendant suggested to Stanley that it would be better for him (defendant) to ship some cattle to Kansas City, and get the money that way, and ship it out. It was further agreed that defendant was to ship the money, and Stanley was to rob the train between Higgins and Canadian. Defendant said that he was a poor man, and, having no money, agreed to this; that there were two or three talks, between themselves, about this matter. Defendant said that he did not know for certain who was at Canadian except Stanley, that Stanley was to get the men to do the robbing; that he (defendant) was to leave with said cattle for Kansas City about the 20th of November. Defendant further stated that he did nearly all of this talking with Stanley, but that Bill Doolan was with them; that, in accordance with this agreement, he shipped the cattle to Kansas City, got the money, went to the express office, got the envelopes, ascertained the rate on money, paid the express charges, amounting to about §30; that he shipped it in five packages to Canadian, and marked each of them §5,000; that he put §100 in each package, making §500 in all; that he got on the same train which carried out this express, and came with it to Canadian; that he expected the train to be robbed between Higgins and Canadian, and after passing Higgins and getting near Canadian, he felt uneasy, for fear that something had miscarried. The description given by appellant of Jim Stanley, Bill Doolan, and the other two men, coincides with the description given by the other witnesses of these parties. At the time of the shooting, appellant was in the hotel, which is situated about 250 or 350 yards from the depot at which the shooting took place. The State’s theory of the case is, that Stanley, or perhaps Doolan, or Harbolt, did the killing, in the attempted perpetration of robbery. It is not necessary for us to decide whether appellant was a principal or an accomplice. It is evident that he was, at least, an accomplice to the murder. We have his confessions to that effect. Now, to convict under this indictment, proceeding upon the theory that he was an accomplice to the murder, the State must prove that Harbolt or some person with whom appellant conspired to commit the robbery killed the deceased. It is not necessary to prove that the person or persons killing the deceased entered into a conspiracy or agreement with the appellant to rob the express company. If those with
whom he conspired employed others to attempt the robbery, appellant is responsible to the same extent as if he had made the agreement with them himself. Having set in motion that which resulted in the death of the deceased, he would be an accomplice to any person, whether instigated by himself directly, or whether instigated by those with whom he had conspired. Having positive proof that he had entered into the conspiracy to rob the express company, the next question that presents itself is this: Is there positive proof that some person killed McGee (the deceased), in the attempt to rob the express company, who was a co-conspirator with the defendant, or who had been employed by those with whom appellant had conspired. Tulsey Jack confessed to McKenzie that he was present at the homicide. McKenzie testified: “While talking about the death of McGee, Tulsey Jack asked me what I had heard about it. I told him I had heard it two or three different ways, and he said, ‘Yes; so have I.’ They claimed that there were seven or eight of us at Canadian, who robbed the train, but didn’t any of them have it right. There was only four of us. Three went up to the depot, and Joe Blake stayed back with the horses. He said that son-of-a-bitch, George Isaacs, tried to swindle them and the railroad company, too; that he promised to ship $5000, and sent only $500.” The real name of Tulsey Jack was Will Blake. If this confession be true, then the State has positive proof that Blake, alias Tulsey Jack, was present when McGee was killed; that he was there for the purpose of robbing the express company of the money deposited with it by appellant at Kansas City for shipment. The next question arising is: As the appellant, in his confession, does not name Tulsey Jack as one of the conspirators, have we positive proof that Tulsey Jack was a co-conspirator with appellant, or that he was employed by some of those with whom appellant had conspired, to-wit: Jim Stanley, Bill Doolan, or others? If there is no positive proof of this fact, then this is a case depending upon circumstantial evidence, because we might concede that there is positive proof that Tulsey Jack was present and a principal in the killing of the deceased; but, if the proof fails to connect appellant with those who did the killing, he is not responsible for the homicide, though he had conspired with Stanley, Doolan, and others to rob the express company. We do not wish to be misunderstood. If appellant entered into a conspiracy with Jim Stanley, Bill Doolan, and others to have the train robbed, and they- attempted to rob the train, and, in doing so, killed McGee, appellant would be guilty of the murder. If those with whom he conspired did not kill McGee, were not present at the time of the killing for the purpose of engaging in the robbery, but some person instigated by them was attempting to rob the express company, and the .murder occurred, appellant would be as guilty as if McGee had been killed by some person with whom he had conspired to have the express company robbed. But if the testimony establishing the fact that McGee was killed by some person with whom appellant had conspired, or who had been employed by some of the co-conspirators, does not
amount to positive proof, then this is a case of circumstantial evidence, and the court should have given a charge upon such a case, especially when requested by the appellant. Now, the question is: Is there positive proof that some one killed McGee who had been inspired to do so by appellant, or by some of his co-conspirators ? Appellant wrote Tulsey Jack a letter, after he had been arrested and liberated. The witness, McKenzie, saw the letter, and the name signed thereto was George Isaacs. McKenzie swears that it contained, in substance, the following: “That he (Isaacs) had got out all right, and had given nothing away.” While this may be circumstantial evidence, or, in other words, it may not be a direct confession connecting appellant with Tulsey Jack, who had confessed that he participated in the attempt to rob and murder, yet but one conclusion can be made from the statement contained in the letter. There is no danger of drawing a wrong conclusion from the statement. Appellant, in that letter, referred to nothing else except the robbery, the murder, and the murderer. Now, the danger in circumstantial evidence consists in drawing improper conclusions from the facts sworn to, but this danger cannot ■exist in this case. We have been discussing the question as if the State relied alone upon connecting Tulsey Jack with the murder as a principal, and by the letter connecting the appellant with Tulsey Jack. The State was not forced to do this. Appellant states positively and unequivocally that Jim Stanley, the man with whom he conspired, was present when McGee was shot. “Defendant said that he did not know for certain who was at Canadian, except Stanley,” referring to the time and place of the robbery, at the time McGee was killed. He was certain that Stanley was there, but uncertain as to any one else being there. Now, the proof shows that there were four men engaged in the attempted robbery. Defendant shows that he got off the train at the depot at which McGee was killed, before the attempted robbery. He is certain that Stanley was there. This is perfectly reasonable. No doubt, he saw Stanley after he left the train, and before he went to the hotel. That Stanley was there is established beyond any sort of doubt by the circumstances of the case. He was seen late in the evening going there, and was followed the next day by Capt. Arrington, back to the Indian Territory, and identified as one of the men stopping at McKen.zie’s. Then there is positive proof that, at least, one of the parties with whom he had entered into the conspiracy to have this robbery effected was a principal in the murder of McGee, whether he shot him or not. We are of opinion that this is not a case depending solely upon circumstantial evidence.
The State introduced in evidence the envelope in which the money was placed at Kansas City for shipment. Isaacs, the appellant, had signed his name upon the envelope. This was proved by a witness who saw him sign his name. This envelope was placed in the hands of McKenzie while on the stand. On examining the signature of George Isaacs on the envelope, he was asked how it compared with the signa
ture to the letter that Tulsey Jack showed the witness at Taloga, which purported to be signed by the defendant. The witness replied that, “in my opinion, the signature was the same as the one I saw to the letter shown me by Tulsey Jack at Taloga.” Appellant objected, “because the witness is not shown to have ever seen Isaacs write his name, is not qualified by counsel as an expert, or being in any way familiar with Isaacs’ handwriting, or any one else’s.” The bill fails to show that the contents of the letter went to the jury. This is necessary. See, Burke v. State, 25 Tex. Crim. App., 172; Jacobs v. State, 28 Tex. Crim. App., 79; Jackson v. State, 28 Tex. Crim. App., 143. The bill fails to show that McKenzie was not qualified or competent to testify as to the handwriting of the appellant. It simply shows, that appellant made this objection. To be a good bill, it should show that evidence was not adduced showing that McKenzie was competent as, an expert, or that he had seen the appellant write, or that he was familiar with the handwriting of the appellant, and should have also shown that the contents of the letter went to the jury. See, Smith v. State, 4 Tex. Crim. App., 626; Hennessy v. State, 23 Tex. Crim. App., 340; Ezzell v. State, 29 Tex. Crim. App., 521. Counsel for the appellant contends that the court erred in charging the jury that, if the murder-was committed in the attempt to rob, it would be murder of the first degree. Counsel presents this question in another form on motion for a new trial, and contends that the proof failed to show that the murder was committed in the attempted robbery. If the evidence fails to show an attempt at robbery, appellant is not guilty of anything at all. The question, therefore, is: “Does it establish the fact that this murder was, committed in the attempt to rob? Four men had ridden eighty to one hundred miles, armed to the teeth, well prepared for traveling; surrounded the depot for no other purpose on earth than to rob the agent of the money shipped by the appellant to Canadian. When the deceased stepped to the door, and asked one of them to stop, that he wanted to see him, he was fired upon from different directions, and killed. Now, it is contended by the appellant that technically this was not an attempt to rob; that it was simply a preparation to rob; that the proof carries it no further. This may be true, but for their presence, their conduct— all being in furtherance of the conspiracy to rob—this homicide would not have occurred. They were in the commission of a felony. That felony was robbery, and their acts were so closely connected with the robbery as to bring about and produce the conflict which resulted in the death of the deceased. Deceased made no attempt to arrest anybody. He simply remarked to one of the parties that he wanted to see him, and the firing commenced. We believe, within the meaning of Art. 711, Rev. Penal Code, 1895, that what was done by the parties there was an attempt at robbery, within the meaning of that article, and that there was, therefore, no error in so instructing the jury, and in refusing to grant a new trial, because the attempt at robbery was not proved. There are some fifty bills of exception and assignments of error in the record, and we have
carefully read them, and consider none of them well taken. We have discussed the questions raised by the appellant which we think worthy of consideration. Finding no errors in the record, the judgment is affirmed.
[Note.—Appellant’s motion for rehearing filed after the above opinion was handed down, was overuled without a written opinion—Reporter.]
Affirmed.