LATTIMORE, Judge.
—In this case appellant was convicted of the murder of Mrs. Mary Lewis, in the District Court of Liberty County, and his punishment fixed at death.
Without going into the sickening details of this case, which show, without controversy, that a helpless woman was knocked in the head and killed by those for whom- she had cared and provided; we make this brief statement of the facts:
. The evidence is sufficient to show that deceased came to her death as the result of the criminal agency of another, and that appellant was connected with the killing, either as accomplice or a principal.
One Robert Osment testified, under agreement with the State, that he actually committed the homicide, but that appellant had earned the eleven year old child of the deceased away from the scene of the killing, to keep her from being a witness thereto and prevent the necessity of killing her also; and that the killing was in pursuance of an agreement so to do, and for the purpose of getting the money of deceased, both what she had on her person and in the bank, and the payments of a continuous income, which was hers from various sources.
Nothing in the record discloses any act or word of deceased showing enmity toward either appellant or Osment, or that the motive for the killing was other than the removal of an obstacle which stood between them and the getting of her money.
According to the story of this accomplice, after his victim was killed by repeated blows on the head from a hammer, he got a money-belt off her body, which he gave to appellant; they left the community together the next day in the automobile of deceased; both of them told other parties before leaving, that Oklahoma officers had come and gotten deceased; appellant claimed that she and they would be back shortly; he sold hogs belonging to her, and collected money for them. Soon after her death he began forging checks on her bank account, upon which he got the money; later, and just before the return of the indictments against him and Osment, he stated that deceased was in Kansas City, and would be down in that community the following spring. Appellant placed no witnesses on the stand.
An examination of the record shows that the first error complained of by appellant, is that- the charge on accomplice testimony is not correct, in that it instructs the jury that there must be other evidence than that of the accomplice
tending to connect
the accused with the offense charged. This charge was correct. See Branch’s Ann. Penal Code, Vol. 1, Sec. 710. The words “tending to connect’’ are not used as referring to the accomplice’s testimony, but to the corroborative testimony.
■ Appellant reserved three bills of exeption, which appear in the record. The first bill complains that the accomplice witness, the man Osment, who turned States evidence, was brought from the county jail to testify, and was, therefore, under intimidation and
could not testify freely, and after he had been permitted to testify, the court overruled appellant’s motion to strike out his testimony on the ground that he was the perpetrator of the crime, and his case had been dismissed, but that he had not been released from custody. There is nothing in the record to show any statutory affidavit for severance, and no tenable objection made before this witness testified. The fact that he was brought from the jail would be no valid ground of objection. It would in no event be sufficient for appellant to make a motion to strike out the objectionable testimony of a witness, upon grounds not presented when the witness offered to testify, and there was no error in overruling the objection made, or in refusing appellant’s motion. There is nothing apparent in the record showing any intimidation of the witness, or any refusal to testify fully to any questions asked him upon either direct or cross-examination. It appears from the record that the case against this witness had been dismissed.
Appellant’s next bill of exceptions present all of the exceptions taken to the court’s charge, none of which point out specifically, by quotation or paragraph, the errors comlained of, but in view of the seriousness of the case, and the gravity of the punishment we have considered the matters contained in said exception. It is complained that the court erred in telling the jury that one may be a principal offender, who is not bodily present when the offense is committed. This was not error, as it is in accord-with our statutes and decisions that one may be a principal who is not present in person. See Branch’s Ann. Penal Code, Arts. 76, 77, and 78, and authorities cited. Again, said charge is excepted to for submitting to the jury the law of principals, it being contended that there was no evidence justifying the same. We cannot agree with this contention. It has been held in this State that an accomplice is one who has completed his offense before the crime is actually committed, and whose liability therefor is dependent on his previous acts in connection therewith. Cook v. State, 14 Tex. Crim. App., 96; Bean v. State, 17 Tex. Crim. App., 61; so that in arriving at a determination of the question as to the attitude of one whose connection is shown both by the testimony of the accomplice and the attendant circumstances, to have existed before and after the commission of the crime under investigation, we might look to the rule mentioned for determining who are accomplices.
Referring to the contention of appellant that one cannot be a principal who is not bodily present at the time of the ommission of the offense, we might remark that it is seriously questionable-under this record, whether appellant was absent from the scene at the time of the killing. The accomplice testified in detail to extended and continuous conversations with appellant prior to the killing, in which there was a growing insistence on the part of appellant that Osment kill deceased, in order that they might get her money, and that it was finally agreed that Osment should kill her
the day prior to that of the actual homicide; and that on that day Osment took deceased in the automobile and carried her out in the bottom, away from the camp, with the intention of killing her, but his heart or nerve failed him, and he brought her back to camp alive. He testified that appellant cursed him and abused him for not killing her that day, and told him that he must kill her the next day, or some one would not leave the river bottom alive. He also said that appellant told him in detail how to kill her, and what to do with the body, etc.
The evidence shows that the next day, the same being the 16th of August, at about three o’clock in the afternoon, appellant, (who went by the name of T. E. or “Blaekie” Lewis, and was known in the community as the son of deceased) and the little girl Violet Lewis, carried Osment and the deceased in a skiff from the houseboat occupied by the entire party, to the bank of the river. The automobile of deceased was on the river bank.- Appellant and the little girl did not go up the bank to the automobile, but Osment and deceased did. We quote from the testimony of Osment: “Anyhow, she and I went up the river bank, and I took her to the car. I got a chance to change the casing, and she started to help me, and she stooped down . . . When she stooped down 1 hit her with the hammer ... on the head . .
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LATTIMORE, Judge.
—In this case appellant was convicted of the murder of Mrs. Mary Lewis, in the District Court of Liberty County, and his punishment fixed at death.
Without going into the sickening details of this case, which show, without controversy, that a helpless woman was knocked in the head and killed by those for whom- she had cared and provided; we make this brief statement of the facts:
. The evidence is sufficient to show that deceased came to her death as the result of the criminal agency of another, and that appellant was connected with the killing, either as accomplice or a principal.
One Robert Osment testified, under agreement with the State, that he actually committed the homicide, but that appellant had earned the eleven year old child of the deceased away from the scene of the killing, to keep her from being a witness thereto and prevent the necessity of killing her also; and that the killing was in pursuance of an agreement so to do, and for the purpose of getting the money of deceased, both what she had on her person and in the bank, and the payments of a continuous income, which was hers from various sources.
Nothing in the record discloses any act or word of deceased showing enmity toward either appellant or Osment, or that the motive for the killing was other than the removal of an obstacle which stood between them and the getting of her money.
According to the story of this accomplice, after his victim was killed by repeated blows on the head from a hammer, he got a money-belt off her body, which he gave to appellant; they left the community together the next day in the automobile of deceased; both of them told other parties before leaving, that Oklahoma officers had come and gotten deceased; appellant claimed that she and they would be back shortly; he sold hogs belonging to her, and collected money for them. Soon after her death he began forging checks on her bank account, upon which he got the money; later, and just before the return of the indictments against him and Osment, he stated that deceased was in Kansas City, and would be down in that community the following spring. Appellant placed no witnesses on the stand.
An examination of the record shows that the first error complained of by appellant, is that- the charge on accomplice testimony is not correct, in that it instructs the jury that there must be other evidence than that of the accomplice
tending to connect
the accused with the offense charged. This charge was correct. See Branch’s Ann. Penal Code, Vol. 1, Sec. 710. The words “tending to connect’’ are not used as referring to the accomplice’s testimony, but to the corroborative testimony.
■ Appellant reserved three bills of exeption, which appear in the record. The first bill complains that the accomplice witness, the man Osment, who turned States evidence, was brought from the county jail to testify, and was, therefore, under intimidation and
could not testify freely, and after he had been permitted to testify, the court overruled appellant’s motion to strike out his testimony on the ground that he was the perpetrator of the crime, and his case had been dismissed, but that he had not been released from custody. There is nothing in the record to show any statutory affidavit for severance, and no tenable objection made before this witness testified. The fact that he was brought from the jail would be no valid ground of objection. It would in no event be sufficient for appellant to make a motion to strike out the objectionable testimony of a witness, upon grounds not presented when the witness offered to testify, and there was no error in overruling the objection made, or in refusing appellant’s motion. There is nothing apparent in the record showing any intimidation of the witness, or any refusal to testify fully to any questions asked him upon either direct or cross-examination. It appears from the record that the case against this witness had been dismissed.
Appellant’s next bill of exceptions present all of the exceptions taken to the court’s charge, none of which point out specifically, by quotation or paragraph, the errors comlained of, but in view of the seriousness of the case, and the gravity of the punishment we have considered the matters contained in said exception. It is complained that the court erred in telling the jury that one may be a principal offender, who is not bodily present when the offense is committed. This was not error, as it is in accord-with our statutes and decisions that one may be a principal who is not present in person. See Branch’s Ann. Penal Code, Arts. 76, 77, and 78, and authorities cited. Again, said charge is excepted to for submitting to the jury the law of principals, it being contended that there was no evidence justifying the same. We cannot agree with this contention. It has been held in this State that an accomplice is one who has completed his offense before the crime is actually committed, and whose liability therefor is dependent on his previous acts in connection therewith. Cook v. State, 14 Tex. Crim. App., 96; Bean v. State, 17 Tex. Crim. App., 61; so that in arriving at a determination of the question as to the attitude of one whose connection is shown both by the testimony of the accomplice and the attendant circumstances, to have existed before and after the commission of the crime under investigation, we might look to the rule mentioned for determining who are accomplices.
Referring to the contention of appellant that one cannot be a principal who is not bodily present at the time of the ommission of the offense, we might remark that it is seriously questionable-under this record, whether appellant was absent from the scene at the time of the killing. The accomplice testified in detail to extended and continuous conversations with appellant prior to the killing, in which there was a growing insistence on the part of appellant that Osment kill deceased, in order that they might get her money, and that it was finally agreed that Osment should kill her
the day prior to that of the actual homicide; and that on that day Osment took deceased in the automobile and carried her out in the bottom, away from the camp, with the intention of killing her, but his heart or nerve failed him, and he brought her back to camp alive. He testified that appellant cursed him and abused him for not killing her that day, and told him that he must kill her the next day, or some one would not leave the river bottom alive. He also said that appellant told him in detail how to kill her, and what to do with the body, etc.
The evidence shows that the next day, the same being the 16th of August, at about three o’clock in the afternoon, appellant, (who went by the name of T. E. or “Blaekie” Lewis, and was known in the community as the son of deceased) and the little girl Violet Lewis, carried Osment and the deceased in a skiff from the houseboat occupied by the entire party, to the bank of the river. The automobile of deceased was on the river bank.- Appellant and the little girl did not go up the bank to the automobile, but Osment and deceased did. We quote from the testimony of Osment: “Anyhow, she and I went up the river bank, and I took her to the car. I got a chance to change the casing, and she started to help me, and she stooped down . . . When she stooped down 1 hit her with the hammer ... on the head . . • I do not know how many times I hit her ... It was between five and ten minutes. I guess, after I landed on the bank, until I did that.” This witness further says that just before he hit her he heard a noise in a little thicket right close by, which he thought was made by appellant, and that he was afraid of appellant, and assaulted the deceased and killed her as aforesaid. Where, in fáct, was appellant at that timet When Osment and deceased were landed from the skiff a few minutes before the killing, Osment says appellant left to go to the launch.
The child who was in the skiff with appellant, testified as follows on this point: “Blaekie (appellant) and I went to pump out the launch ... We had gotten about as far up the river as from here to that brick building out there—as far as from here to the back of the house . . . Blaekie got out . . . He says ‘I will walk around the bend. I don’t want to pass old man Green’s camp.’ ” The child further states that he told her he would cut across the bend and meet her when she got around there, and that she paddled the boat on up the river around the bend, and that he did meet her; that it was a nearer way across the bend than the one she had to go with the boat; that at the point where he got out of the boat she could not see her mother and Osment up on the bank.
It was a very singular circumstance indeed that appellant should have landed Osment and deceased from the skiff, and that they went up on the bank to the automobile, where Osment killed deceased in a few minutes; and that as soon as appellant got out of sight,
and at a distance estimated by the child as far as the back of the house, that he should have landed from the boat and had the eleven year old girl child to paddle the boat against the current and around the bend, while he went across the nearer way. What was the noise that was heard by Osment in the nearby thicket, which he says he thought was appellant ? The record is silent as to appellant’s movements from the moment he landed from the boat until he had met the child after she had paddled around the bend; but we note that it is in testimony that when appellant first met Osment that evening, after the killing, without any conversation or explanation, he remarked to Osment: “You did what I told you to, didn’t you?’’
Again, it was a question of fact for the jury to decide, whether or not at the time Osment did the killing, appellant was doing his part, in furtherance of a common design to murder. Osment says. “The reason why the child did not go with us was, Blackie told her not to go. He would "not let her go, so she would not be in illie way, and that was why he was keeping her from there, so she would not see me kill her mother.”
In another place, this witness says: “Blackie said he would take Violet up to the launch, so we would not have to kill her, and she would not know anything about it. He said that he was going to do that, and he did do that; I suppose he did, he left to go to the launch.” ’
There is no doubt in our minds on the proposition that one who purposely removes a possible or probable witness for the purpose of preventing the witnessing by such person of the proposed crime and who is keeping such person away, is within the definition of a principal, as contained in Article 78 of our Penal Code, which is as follows:
“All persons who shall engage in procuring aid, arms or means of any kind to assist in the commission of an offense, while others are executing the unlawful act, and all persons who endeavor at the time of the commission of the offense, to secure the safety or concealment of the offenders, are principals, and may be convicted and punished as such.”
Was the child a probable witness, and was she removed and kept away by appellant? These were questions of fact for the jury. If the actions of appellant evidenced to any extent or degree, however slight, his participation in the matter of concealment, or procuring the safety of himself and Osment, or of Osment, at the time the deceased was killed, this would be a matter for the jury to decide, under proper instructions on principals.
• It is not necessary, under our authorities, to corroborate an accomplice’s entire narrative, nor all of his testimony.—Holmes v. State, 70 Texas Crim. Rep., 423, 157 S. W. Rep., 493; Payne v. State, 40 Tex. Crim. Rep., 290; Darlington v. State, 40 Tex. Crim. Rep., 333.
There is another theory upon which might be predicated appellant’s conviction as a principal offender. The record shows that the objective of appellant and Osment was to get the money and the property of the deceased. They could have had no other reason or ground for causing the death of the helpless woman, except that same was apparently a necessary step in procuring her money. Osment details the plan as outlined to him by appellant, who, as stated, was going under the name of T. E. Lewis, and claiming to be the son of deceased. Said accomplice says that after deceased, was killed, appellant was going to marry a girl whose name was Mary, and after obtaining the money in the bank, all future cheeks and receipts necessary to continue to get the income of deceased, would be signed by said girl as “Mary Lewis,” and the matter could continue indefinitely. After the death of deceased, appellant, in pursuance of this plan, as disclosed by the evidence of other parties, forged checks and got money belonging to deceased out of the bank, and made many false statements as to her whereabouts, the first one being made the afternoon she was killed and shortly after it occurred. He also appropriated her property, beginning that very afternoon. These facts clearly show a conspiracy between Osment and appellant, and for so long as same continued; and, until its consummation, the acts of each in furtherance of the common design, were the acts of all, and each would be a principal in any crime committed in the execution of such design. We think the trial court did not err in submitting the law of principals to the jury. There was no exception to the manner of such submission.
Appellant’s remaining bill of exceptions is to the testimony of the witnesses who found what purported to be the remains of deceased. It appears from the record that, after his conviction, Osment carried the officers to the spot where he said he had placed the body of deceased. It was under water at the time they went there, but the officers waded in the water and found the entire skeleton, clothes, hair, etc., of a woman. Witnesses upon the stand identified the clothing by color and description as that which, in their judgment, was worn by deceased at the time of her death. The bill of exceptions is multifarious, containing a continuous narration of the exceptions taken to the testimony of five different witnesses, and we might content ourselves with declining to consider it for that reason, but the severity of the penalty has led us to give the matters complained of qur attention. We do not think the court erred in permitting the clothing found near the spot where the body was said to be hidden, to be exhibited before the jury. The identification of the deceased was a serious contention and it was proper to permit the witnesses to examine the clothing and testify that in their opinion the same were the clothes worn by deceased. This exhibition of the clothing to the witnesses placed it before the jury as effectually as did its actual tender as evidence by the State. Nor do we tbink there was any error in refusing to strike out the evidence
of witnesses who found the bones, hair, etc., because of the fact that they were unable' to state postively that same were those of deceased; nor do we believe any error was committed by the exhibition before the jury of a hammer and hatchet found in the ear of deceased after her death. It was alleged in the indictment that the grand jury did not know the means by which she was killed, and it was not error to permit the foreman of the grand; jury to testify about the efforts made by the grand jury to ascertain such means and their inability to do so.
We have given to this case our careful attention and scrutiny. The enormity of the crime, and the fact that the gravest penalty known to our law was inflicted, has led us to thoroughly sift each fact and circumstance. We are unable to find any reversible error in the record, and the judgment of the trial court is affirmed.
Affirmed,.