Phillips v. State

17 Tex. Ct. App. 169, 1884 Tex. Crim. App. LEXIS 192

• Court: Court of Appeals of Texas
• Decided: November 19, 1884
• Docket: No. 1817
• Status: Published

Opinion

Willsoh, Judge.

I. The indictment is sufficient. It almost literally follows the language of the statute, in charging the offense. It alleges that the offense was committed in Parker county, and that the grass fired was the grass in Thomas Stewart’s pasture inside his inclosure, and that the defendant was not the owner of said inclosure, and that the defendant set fire to said grass unlawfully and wilfully, with the intent to destroy it. These allegations set forth the facts which constitute the offense of which the defendant was convicted. (Geni. Laws, Spec. Sess., 18th Leg., p. 66.) It was perhaps unnecessary to allege the ownership of the inclosure further than to allege that it was not the property of the defendant. (State v. White, 41 Texas, 64.) But it is no objection to the indictment that it alleges ownership in Thomas Stewart; in fact, we think it is the better form, when it is practicable, to insert an allegation of ownership, for the purpose of more particularly identifying the offenses. Such seems to be the approved practice in similar cases. (1 Bish. Or. Proc., §§ 571-581; 2 Id., §36; Bish. on Stat. Or., § 443; 1 Whart. Or. Law, § 841.)

II. »Our statute settles the question as to the allegation of ownership whenever it is necessary that such allegation should be made. “ Where one owns the property, and another person has the possession, charge or control of the same, the ownership thereof may be proved to be in either. When property is owned in common, or jointly, by two or more persons, the ownership may be alleged in all, or either of them.” (Code Grim. Proc., art. 426.)

III. Proof of possession merely is sufficient proof of the allegation of ownership, and this rule is applicable to all offenses wherein allegation and proof of ownership are required. (May v. The State, 15 Texas Ct. App., 430.)

IY. In cases like this, proof of ownership may be made by paroi. Ownership or title by possession is always made by paroi testimony. In general, where the title in fee to land is necessary to be proved, it cannot be proved by paroi, but to this general rule there are exceptions. In this case, it matters not who owned the fee in the land, so that it was shown that the defendant did not own it. A mere possessory title in some other person than the defendant was all that the prosecution was required to prove, and such title was proved to be in Thomas Stewart, the alleged owner. This proof being made, prima faeie the ownership of the inclosure was in Stewart and not .in the defendant, and if defendant had any title to-the inclosure, the fact was peculiarly within his knowledge, and the burden rested upon him to show it. (Jones v. The State, 13 Texas Ct. App., 1.) The rule prescribed in the analogous case of cutting timber on land not one’s own, as to proof of ownership, would not be inapplicable in this case. (Code Grim. Proc., art. 700, sub. 4.) We hold that the proof of the allegation of ownership in this case, and of the allegation that the defendant was not the owner of the inclosure, was both competent and sufficient.

Y. Dan Sisk, a principal witness for the State, was a confessed accomplice in the crime charged against the defendant. He testified that he was present when it was committed, and was a principal offender with the defendant in its commission. Hat Sisk, another principal witness for the State, was not present at the commission of the crime, but prior to its commission, on the same night, he had full knowledge that Dan Sisk and the defendant were intending to commit it, and furnished the defendant with a horse to ride to the place, some three miles, where the offense was to be and was committecL If both these witnesses were accomplices, their uncorroborated testimony would not sustain a conviction. Dan Sisk was unquestionably an accomplice, and the evidence tends strongly to show that Hat Sisk was also. It therefore became the imperative duty of the court to instruct the jury explicitly, fully and correctly upon the rules governing accomplice testimony. This duty the court undertook to discharge. Without quoting the charge upon this subject, we will say that in our opinion it is materially erroneous, and was calculated to mislead the jury. The jury are told, in effect, that to make Hat Sisk an accomplice, so as to require his testimony to be corroborated, they must believe from the evidence that he participated in the actual commission of the offense,— thereby conveying the impression that he must have been a principal offender, present and acting together with Dan Sisk and the defendant, in the commission of the offense. Under this instruction the jury "would most likely conclude from the evidence that Hat Sisk was-not an accomplice, although they might be satisfied that he knowingly furnished aid to the defendant for the purpose of enabling him to commit the offense.

It is well settled that the word “accomplice,” when applied to evidence, includes not only principal offenders, but accomplices and accessories, and all those who are particeps criminis. (Smith v. The State, 13 Texas Ct. App., 507, and cases there cited.) It has a broader signification in this connection than it has in article 79 of the Penal Code, which defines an accomplice in crime. It means a person who either as a principal, an accomplice or an accessory, is connected with the crime by unlawful act or omission on his part transpiring either before, at the time of, or after the actual commission of the crime, and whether he be present and participating in its commission or not. If Hat Sisk, knowing the unlawful intent of the defendant to commit the crime, aided him in so doing by furnishing him a horse to ride to the place where it was to be committed, he would be an accomplice in the crime, although he did not participate in its actual commission. (Penal Code, art. 86. See Cook v. The State, 14 Texas Ct. App., 96, for the distinction between principal offenders and accomplices and accessories.) And the jury should have been so instructed by the court. It was a matter of vital importance to the defendant that the law upon this issue should be clearly and correctly explained to the jury, by a full and accurate definition of the word accoviplice in the charge of the court. There was no testimony tending to connect the defendant with the commission of the offense, except that of the witnesses Dan and Mat Sisk. Their testimony was wholly uncorroborated in the manner required in the case of accomplice testimony. (Code Grim. Proo., art. 741.) If Mat Sisk was an accomplice, .the testimony of the State was insufficient to warrant the conviction of the defendant, for one accomplice cannot corroborate another. (Heath v. The State, 7 Texas Ct. App., 464.) The charge of the court upon this subject was promptly and specifically excepted to by the defendant, and he also requested special instructions intended to correct the error complained of; which were refused.

We have considered other questions presented in the record, but ■have found no material error in the conviction, except that in the charge of the court, above discussed, and for this error alone the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered November 19, 1884.]