GRAVES, Judge.
Appellant was convicted of a conspiracy to commit a felony, and by the jury given a sentence of five years in the penitentiary.
The indictment charges appellant and one Betty Marks, his wife, with a conspiracy to commit theft from one E. W. Alexander.
It appears from the facts that Betty Marks, under the name of Madam Thompson, was a fortune teller or clairvoyant; that her husband, appellant, had rented a building in Waxahachie and equipped the same with electric lights, and a sewing machine and furniture, and had published in the daily newspaper a notice as follows:
“Phrenologist now in Waxahachie, Texas. Don’t fail to see Madam Thompson who answers all questions of love, business and law suits. Answers three questions free. All readings confidential. Open from eighty-thirty a. m. until nine-thirty p. m. Madam Thompson convinces the most skeptical people.”
Mr. E. W. Alexander, a citizen of Ellis County since the year 1884, visited Madam Thompson and paid her fifty cents to tell his fortune; he also let her have a dollar of his own money and she “trebled” it and gave him back twenty-one dollars; he then gave her a “twenty” and she made ninety-one dollars out of it, which money the Madam kept. Later on Mr. Alexander went to the bank and drew therefrom $7,749.00 and gave same to Madam Thompson. That she then hand-sewed and made a belt out of canvas and placed the money therein, and placed such belt around Mr. Alexander’s waist next to the skin and told him to go away and come back the next morning. He went back the next morning and Madam took the belt off and rubbed Alexander’s back, and then rolled the belt up “and was going to double and triple it, and she threw a handkerchief over it and said, ‘You take this home and keep it six days and come back.’ ” He went home, but on the third day he became frightened and looked in the belt and there was nothing but
paper in there, and he came and notified the officers. The appellant and his wife in the meantime had left the City of Waxahachie, and were about two months afterwards located by the Sheriff of Ellis County in Hood River, Oregon, 2118 miles from Waxahachie. It was shown that appellant and his wife were living at the place where this transaction took place, and left in the nighttime, leaving their paraphernalia, save their Buick car and trailer, the car showing about 3,000 miles on its speedometer at the time of their leaving, and when apprehended at Hood River, Oregon,' they were possessed of a Buick car of different color, with the speedometer showing about 1,400 miles.
We are early met in the discussion of this matter with Art. 4 of the Penal Code, and Art. 24 of the Code of Criminal Procedure, wherein it is said, in substance, that where- a statutory rule is not found governing any transaction, then that the rules of the common law should be applied thereto.
In this instance appellant and his wife are alleged to have entered into the substantive crime of a conspiracy to commit a felony. The contention then confronts us that under the common law a husband and wife are one, the entity of the wife upon marriage being merged with that of the husband, and, it being necessary under Art. 1622, P. C., that at least two persons enter into a positive agreement, there being but one person, according to the common law, the proof as to the conspiracy between two persons has failed.
It is admitted that in many of the states, in so far as this offense denounced in Art. 1622, P. C. is concerned, the husband and wife alone could not commit the substantive crime of a conspiracy to commit a felony. See 1 Bishop Criminal Law, Sec. 187; 15 Corpus Juris Secundum, p. 1060, and cases there cited. These cases are based upon the fact that in such states, in the absence of statutes, they are pure common law states, and to that extent are not in the same category of this State. Texas has a different history relative to the initial adoption of its laws relative to the status of a woman under coverture. Our martial laws sprang from the mother Spanish country, and much of such laws bear evidence of the influence cast upon the Texas law in regard to marital rights. Innovations, unknown to the common law, have been engrafted upon and early become a portion of our jurisprudence that are entirely foreign to the English common law. It is said in 23 Tex. Jur., p. 36;
“There is a wide distinction between the rule of the common law and that of the Spanish law upon the question of martial rights. The distinction is worth while, since we owe much to the civil law in this respect, and our statutes are patterned more nearly after that system.
“The Spanish civil law looked upon the marriage union as a species of partnership in which each might own and control a separate estate, as well as a common interest in a common fiind called the ganancial goods. It accorded necessarily a great many rights and privileges to the wife that were unknown to the common law. The two systems were fundamentally opposed to each other.”
In the early case of Barkley v. Dumke, 99 Texas 150, 87 S. W. 1147, Chief Justice Gaines held in derogation of the common law that a putative wife forfeited none of her marital rights by virture of the fact that she had in good faith entered into a marriage contract with a man already having a lawful living wife. This by virtue of the act of January 20, 1840, entitled:
“ ‘An Act to Adopt the Common Law of England, to Repeal Certain Mexican Laws, and to Regulate the Marital Rights of • Parties’ indicates that the rights of married persons were to be defined by statute, and not to be governed by the rules of common law.”
Again he says: “The provisions of the act with reference to married persons are so inconsistent with the rules of the common law as to show an intention to maintain in reference to marital rights a radically different system. The fact that these provisions were incorporated in the act which adopted the common law is of itself significant of the purpose of the legislature not to apply the rules of the common law to the property rights of husband and wife.”
Our different Constitutions from 1845 to 1876 evidenced their intention while mentioning the common law of England, nevertheless by their own self-contained statements evidence the facts that such was greatly liberalized relative to marital property rights, thus voiding the fiction of her being but a chattel, merged into the identity of her husband upon marriage. If the reason for the rule fails, then the rule should fail, and long since in Texas has it been held in Smith v. State, 48 Tex. Cr. R. 233, that a husband and wife can enter into the sub
stantive crime of a conspiracy to commit a felony. The Smith Case, supra, has been cited with approval in the case of Dalton v. People, 189 Pac. 37, a Colorado case, although previously that State had by statute abrogated the common-law fiction of the oneness of husband and wife.
It has long since been held in Texas that a wife can conspire with her husband so that she could be charged as a principal in a crime by virtue of her conspiracy with him, and again if a third person be also named as a party to the crime of conspiracy, then all parties are punishable.
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GRAVES, Judge.
Appellant was convicted of a conspiracy to commit a felony, and by the jury given a sentence of five years in the penitentiary.
The indictment charges appellant and one Betty Marks, his wife, with a conspiracy to commit theft from one E. W. Alexander.
It appears from the facts that Betty Marks, under the name of Madam Thompson, was a fortune teller or clairvoyant; that her husband, appellant, had rented a building in Waxahachie and equipped the same with electric lights, and a sewing machine and furniture, and had published in the daily newspaper a notice as follows:
“Phrenologist now in Waxahachie, Texas. Don’t fail to see Madam Thompson who answers all questions of love, business and law suits. Answers three questions free. All readings confidential. Open from eighty-thirty a. m. until nine-thirty p. m. Madam Thompson convinces the most skeptical people.”
Mr. E. W. Alexander, a citizen of Ellis County since the year 1884, visited Madam Thompson and paid her fifty cents to tell his fortune; he also let her have a dollar of his own money and she “trebled” it and gave him back twenty-one dollars; he then gave her a “twenty” and she made ninety-one dollars out of it, which money the Madam kept. Later on Mr. Alexander went to the bank and drew therefrom $7,749.00 and gave same to Madam Thompson. That she then hand-sewed and made a belt out of canvas and placed the money therein, and placed such belt around Mr. Alexander’s waist next to the skin and told him to go away and come back the next morning. He went back the next morning and Madam took the belt off and rubbed Alexander’s back, and then rolled the belt up “and was going to double and triple it, and she threw a handkerchief over it and said, ‘You take this home and keep it six days and come back.’ ” He went home, but on the third day he became frightened and looked in the belt and there was nothing but
paper in there, and he came and notified the officers. The appellant and his wife in the meantime had left the City of Waxahachie, and were about two months afterwards located by the Sheriff of Ellis County in Hood River, Oregon, 2118 miles from Waxahachie. It was shown that appellant and his wife were living at the place where this transaction took place, and left in the nighttime, leaving their paraphernalia, save their Buick car and trailer, the car showing about 3,000 miles on its speedometer at the time of their leaving, and when apprehended at Hood River, Oregon,' they were possessed of a Buick car of different color, with the speedometer showing about 1,400 miles.
We are early met in the discussion of this matter with Art. 4 of the Penal Code, and Art. 24 of the Code of Criminal Procedure, wherein it is said, in substance, that where- a statutory rule is not found governing any transaction, then that the rules of the common law should be applied thereto.
In this instance appellant and his wife are alleged to have entered into the substantive crime of a conspiracy to commit a felony. The contention then confronts us that under the common law a husband and wife are one, the entity of the wife upon marriage being merged with that of the husband, and, it being necessary under Art. 1622, P. C., that at least two persons enter into a positive agreement, there being but one person, according to the common law, the proof as to the conspiracy between two persons has failed.
It is admitted that in many of the states, in so far as this offense denounced in Art. 1622, P. C. is concerned, the husband and wife alone could not commit the substantive crime of a conspiracy to commit a felony. See 1 Bishop Criminal Law, Sec. 187; 15 Corpus Juris Secundum, p. 1060, and cases there cited. These cases are based upon the fact that in such states, in the absence of statutes, they are pure common law states, and to that extent are not in the same category of this State. Texas has a different history relative to the initial adoption of its laws relative to the status of a woman under coverture. Our martial laws sprang from the mother Spanish country, and much of such laws bear evidence of the influence cast upon the Texas law in regard to marital rights. Innovations, unknown to the common law, have been engrafted upon and early become a portion of our jurisprudence that are entirely foreign to the English common law. It is said in 23 Tex. Jur., p. 36;
“There is a wide distinction between the rule of the common law and that of the Spanish law upon the question of martial rights. The distinction is worth while, since we owe much to the civil law in this respect, and our statutes are patterned more nearly after that system.
“The Spanish civil law looked upon the marriage union as a species of partnership in which each might own and control a separate estate, as well as a common interest in a common fiind called the ganancial goods. It accorded necessarily a great many rights and privileges to the wife that were unknown to the common law. The two systems were fundamentally opposed to each other.”
In the early case of Barkley v. Dumke, 99 Texas 150, 87 S. W. 1147, Chief Justice Gaines held in derogation of the common law that a putative wife forfeited none of her marital rights by virture of the fact that she had in good faith entered into a marriage contract with a man already having a lawful living wife. This by virtue of the act of January 20, 1840, entitled:
“ ‘An Act to Adopt the Common Law of England, to Repeal Certain Mexican Laws, and to Regulate the Marital Rights of • Parties’ indicates that the rights of married persons were to be defined by statute, and not to be governed by the rules of common law.”
Again he says: “The provisions of the act with reference to married persons are so inconsistent with the rules of the common law as to show an intention to maintain in reference to marital rights a radically different system. The fact that these provisions were incorporated in the act which adopted the common law is of itself significant of the purpose of the legislature not to apply the rules of the common law to the property rights of husband and wife.”
Our different Constitutions from 1845 to 1876 evidenced their intention while mentioning the common law of England, nevertheless by their own self-contained statements evidence the facts that such was greatly liberalized relative to marital property rights, thus voiding the fiction of her being but a chattel, merged into the identity of her husband upon marriage. If the reason for the rule fails, then the rule should fail, and long since in Texas has it been held in Smith v. State, 48 Tex. Cr. R. 233, that a husband and wife can enter into the sub
stantive crime of a conspiracy to commit a felony. The Smith Case, supra, has been cited with approval in the case of Dalton v. People, 189 Pac. 37, a Colorado case, although previously that State had by statute abrogated the common-law fiction of the oneness of husband and wife.
It has long since been held in Texas that a wife can conspire with her husband so that she could be charged as a principal in a crime by virtue of her conspiracy with him, and again if a third person be also named as a party to the crime of conspiracy, then all parties are punishable.
We think that in view of the inception of our adoption of the common law, mingled with the Spanish law not only by statutes but initiated by each succeeding Constitution, and “especially when viewed in the light of our advanced civilization, which in a great measure has emancipated the wife from the thralldom under which she formerly labored under the English system,” as was said in the Smith case, supra, decided in 1905, and in a further view in the various constitutional and statutory enactments since the decision of that case, we think the mythical fiction of a wife losing her identity in that of her husband has long since been exploded, and she can not only enter into a conspiracy with him in the commission of a crime,but can be held for the substantive crime of a conspiracy with her spouse. Thus believing, we hold that both such spouses can be guilty of a violation of Art. 1622, P. G.
We are next confronted with the provisions of Arts. 32 and 33 of our Penal Code, which provide, in substance, in Art. 32, that when a woman commits an offense by command and persuasion of her husband her punishment shall never be death, but she shall only receive one-half of the punishment she would otherwise have
received;
and in Art. 33, holding in substance that it appears that a wife was instigated or aided in the commission of an offense by her husband, such husband shall be punished by death, in capital cases, and by double-punishment in cases other than capital.
The wife not being on trial herein, we see no reason for appellant being exercised relative to her punishment at this time. If it be conceded that appellant aided and assisted his wife in the commission of this present offense, and therefore comes under the terms of Art. 33, supra, we do not see what ground of complaint he might here reasonably offer. The trial
court either overlooked such Art. 33, or thought the same did not apply herein, for he merely charged the jury relative to a penalty of not less than two nor more than five years, and did not charge a double penalty of not less than four nor more than ten years. The jury assessed the limit penalty given in the charge rather than the limit penalty should Art. 33, supra, have been given effect in the charge.- It therefore seems that appellant probably received a penalty of five years less than could have been and possibly would have been given him had the terms of Art. 33 been complied with.
It is also noted that no complaint is made relative to the court’s charge wherein it stated the penalty, and the punishment being within the radius of either penalty, the objection comes too late if made for the first time on appeal. Manning v. State, 46 Tex. Cr. R. 332, 81 S. W. 957.
There is but one bill of exceptions and that relates to the fact that the first witness, E. W. Alexander, was permitted to detail the transactions between himself and Betty Marks before the State had shown any concert of action of any kind between appellant and Betty Marks. The court’s qualification shows that the witness was old and in poor health, and he allowed him to testify under the promise that testimony would later be produced showing appellant’s connection with Betty Marks. We think under such circumstances it was a matter of small import as to what end of the case the State began, provided they finally produced both ends. We think such a matter was within the trial court’s discretion. See Gregory v. State, 244 S. W. 615; 92 Tex. Cr. R. 574; Shannon v. State, 123 Tex. Cr. R. 521, 59 S. W. (2d) 142.
We have given the facts careful consideration and find that appellant and his wife came into Waxahachie, and appellant rented a house; that appellant rented furniture therefor; that he made arrangements for the lighting of the house, and purchased a sewing machine; that he placed the advertisement in the paper and paid therefor relative to his wife as a clairvoyant or fortune teller; that he was present at such house at different times, and was in charge thereof; that he owned an automobile and trailer, and that he and his wife remained in Waxahachie but a few days, and that he made arrangements for their early departure therefrom; that they left probably during the night, and were later located together more than
2,000 miles from Waxahachie; that although possessed of an automobile at Waxahachie which had been driven but a short distance, they were, at Hood River, possessed of an automobile which was practically new, leaving room for the inference that they had purchased a new car; that they left Waxahachie at an early date after Mr. Alexander had been duped by the wife, the fortune teller, under such circumstances as to suggest their flight, — all of these circumstances taken together sug'gest to us such cogency as to exclude every other reasonable hypothesis than that of the guilty of a conspiracy between themselves to do the very thing that they did do. Appellant performed his portion of the conspiracy by arranging the trap, and inviting the victim therein while his wife performed her portion thereof by her chicanery and stratagems, their purpose being the obtaining of their illgotten gains from, one who had spent his long life in amassing them. These are but circumstances, and the trial court instructed the jury on circumstantial evidence. We quote from Vernon’s Penal Code, Art. 1622, Vol. 3, p 321, note.
“It is not necessary, in order to establish a conspiracy to commit an offense, to prove that the persons charged came together, and actually agreed in terms to have that design and pursue it by common means. If it be proved that they pursued the same objects, often by the same means, one performing one part and another a different 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 concluding that they were engaged in a conspiracy to effect that object, and such acting together would make all principal offenders, whether bodily present at the place of the offense or not, and until the full purpose and object of the conspiracy has been consummated. Smith v. State, 21 Cr. R. 107, 17 S. W. 552.”
The opinion is expressed that no error is shown herein, and the judgment is affirmed.