Simms v. State

10 Tex. Ct. App. 131

• Court: Court of Appeals of Texas
• Decided: July 1, 1881
• Status: Published

Opinion

White, P. J.

Appellant’s former appeal in this case was from a judgment of capital conviction of murder of the first degree. Simms v. State, 8 Texas Ct. App. 230. His appeal in this instance is from a judgment of conviction of murder of the first degree, the punishment affixed being imprisonment in the State penitentiary for the term of his natural life.

Two counts are contained in the indictment; one (the first) charging W. W. alias Bunk Simms (appellant) alone with the murder, whilst the second charges that the crime was committed by one J. T. Plummer, but that before its commission he was incited, hired, encouraged, advised and aided to and in its execution by W. W. alias Bunk Simms, this appellant. In the first count the appellant is charged as a principal offender, and in the second as an accomplice to the murder.

By the second bill of exceptions it is shown that on the trial, after the evidence for the prosecution had been introduced, “the defendant moved the court to require the State to elect upon which count of the indictment it would try the defendant.” The motion was overruled, and the ruling is claimed to be and forms the first error complained of in the able brief of counsel for appellant.

It cannot be gainsaid but that two separate and distinct offenses were alleged, since under neither of said counts could the defendant have been convicted as charged in the other,—the rule being well settled that when a party is charged as a principal offender he cannot, under the Code of this State, be convicted as an accomplice, nor vice 'versa. McKeen v. State, 7 Texas Ct. App. 631. This difficulty was doubtless.felt and appreciated by the pleader, and hence the two counts. Had the rule been otherwise, there would have been no real necessity in this indictment for more than the single count charging defendant in the ordinary form with the commission of the murder.

There being two counts, setting out separate and distinct offenses, should the State have been compelled to elect? Our Supreme Court has declared, in Lunn v. State, 44 Texas, 85, that “when two offenses are charged in an indictment or developed by the evidence, the district attorney should be required to elect on which of the charges he intends to claim a conviction, as soon as he has examined the witnesses far enough to identify the transaction; and. as a general rule the election should be made before the defendant offers his evidence.” This rule has been followed by subsequent decisions of this court. Dalton v. State, 4 Texas Ct. App. 333, and cases cited. As applicable to the case here presented, we cannot, perhaps, better illustrate the rule and its necessity than by drawing the distinction between the two offenses with reference to the difference in a most material respect which exists as to the legality and admissibility of the evidence by which the two charges are susceptible of being proven.

Under the count charging the defendant as a principal, whether alone or in connection with others, the prosecution might have shown and have established not only the existence and actual perpetration of the deed in connection with other parties, but, having once established such conspiracy, would have been entitled, as against the co-conspirator on trial, to prove any act, declaration or admission of the confederate or confederates not on trial, done and said in pursuance of the common design and in furtherance of it up to the time of its commission, but no further. “Acts, conduct and declarations of each confederate, made and done during the pendency of a criminal enterprise, are competent evidence against all engaged in it, as each is supposed to approve and sanction all that was done or said in furtherance of the common object.” Cox et als. v. State, 8 Texas Ct. App. 256; 1 Greenl. Ev. §§ 111 and 233. Such acts, conduct and declarations are held to be admissible as part of the res gestee; but subsequent narrations, confessions or admissions stand upon a different principle, as the presumption is that they were not made in pursuance of a common design, and consequently they cannot be admitted as evidence to affect any one except the party by whom they were made. U. S. v. Hartwell, 3 Clifford, 221; Draper v. State, 22 Texas, 400; McWilliams v. State, 44 Texas, 116; Preston v. State, 4 Texas Ct. App. 186. And especially is this so with regard to confessions made by one party after the deed has been committed; the general rule of law being that a man's confessions of guilt can only be used against himself.

Such rules, however, do not obtain where an accomplice is being tried separately from his principal. Accomplices under our Code would in most of the States and at common law be denominated accessories before the fact, and, save in cases specially excepted, the rules applicable elsewhere to the latter with us also apply to the former. McKeen v. State, 7 Texas Ct. App. 631; Arnold v. State, 9 Texas Ct. App. 435. Where a party is being tried as an accessory before the fact, or as an accomplice, it is essential as a predicate for, or condition precedent to, his guilt, that the State should establish the guilt of the principal; for his guilt is dependent on that of the principal, whether the latter is on trial or not. Whart. Crim. Ev. § 602; Arnold v. State, supra. But in thus estabhshing the guilt of the principal on the trial of the accomplice, the prosecution, when the confederacy between the two has been shown, is not limited to what was said and done by the principal before the consummation of the act; but, in addition thereto, the acts and conduct of the principal immediately following the commission of the deed, and tending to show he committed it, are competent evidence to prove the guilt of the principal. Whart. Crim. Ev. 702; State v. Lewis, 45 Iowa, 20. In other words, “whatever naturally and usually follows immediately on the commission of a crime,— the act of flying and escaping from the place, concealment and disguise of the person, and other acts and conduct of the like character, such as in and of themselves naturally imply connection with the commission of the crime,— are evidence of guilt, not so much in the nature of confessions and admissions as because they are the usual and habitual concomitants of the crime on trial. The transaction investigated on the trial, — the res gestee,— consists not merely of the direct criminal act which constitutes the legal offense; the necessary preparations for the perpetration of the crime, the arrangements for escape, the.act of escaping, concealment and disguise of the person, and other similar acts and conduct, are all parts of the transaction such as common experience shows naturally belong to the crime, and are habitually connected with the commission of the offense. In this point of view, the acts and conduct of the principal immediately following the commission of the offense are competent evidence to prove his guilt on the trial of the accessory” (or accomplice). State v. Rand, 33 N. H. 216; People v. Stanley, 47 Cal. 113.

And so also with subsequent confessions made by the principal. We are aware that a contrary rule was formerly held. Mr. Russell, in his celebrated work on Crimes, says: “Upon an indictment against an accessory, a confession by the principal is not admissible to prove the guilt of the principal; it must be proved aliunde. ” 1 Russ, on Crimes (9th ed.), side p. 76. This doctrine is based upon the leading case of Rex v. Turner, 1 Moo. Cr. Cas. 374. In the well considered case of Hartwell v. U. S. 3 Clifford C. C. R. 221, Judge Clifford in discussing Turner’s case says: “If viewed as deciding that the confessions of the principal in a case where the principal and accessory are indicted and tried together are not admissible to prove the guilt of the principal, it is clearly opposed to the general course of decisions in criminal cases for centuries, and it is difficult to see why any different rule should prevail where the principal is first convicted, provided they are both joined in the same indictment. Many cases arise where criminal justice cannot be administered if the rule is as supposed by defendants. Take, for example, the case of an accessory in murder, where the principal is not upon trial because he pleaded guilty in the presence of the court and jury. Conviction of the accessory cannot take place without first proving the guilt of the principal, and his guilt cannot be shown without proving he committed the homicide with malice aforethought. Previous threats are the more usual evidence of malice in trials for murder, but if those are inadmissible then the accessory must be acquitted, however flagrant his guilt. . . . Malice aforethought is the characteristic criterion by which murder is distinguished from manslaughter, and many cases of secret homicide arise where there is no proof of antecedent threats or lying in wait; and in such cases resort is necessarily had to circumstances and frequently to the subsequent conduct and declarations of the prisoner to prove that material allegation of the indictment. Such evidence is clearly admissible against the principal when he is on trial, and if it is not admissible in the trial of the accessory to confirm the prima facie presumption resulting from the record of the principal’s conviction in a case like the present, then there can be no such confirmation; which cannot be admitted.”

Our statute provides that “an accomplice may be arrested, tried and punished before the conviction of the principal offender, and the acquittal of the principal shall not bar a prosecution against the accomplice, but on the trial of an accomplice the evidence must be such as would have convicted the principal.” Penal Code, art. 89. In Arnold’s case it was said, in discussing a similar question, “It being then necessary for the State to show the guilt of the principals, all legal evidence of whatever character is admissible. Therefore motives, threats and confessions of the principals, and in fact evidence from every legal source, is competent.” 9 Texas Ct. App. 435. Another rule of law equally well settled, and which should not be overlooked in this connection, is that “deliberate confessions of guilt are among the most effectual proofs in the law, and that rule is applicable to the party who made the confession as well when he is tried with others as when he is tried alone.” 1 Greenl. Ev. §§ 215, 233; Ros. Crim. Ev. 37, 52.

Now let us apply these rules and principles of law to the case before us. Appellant Simms was alone indicted and alone tried for the murder. Plummer, the alleged principal in the second comit, if indicted, was not joined in this indictment,—was not being tried,—-but on the contrary had turned State’s evidence and was a principal witness on the trial against Simms. On the trial the prosecution was permitted to prove against Simms the acts, flight, declarations and confessions of Plummer after the homicide, and particularly certain statements made by him after his arrest and in the absence of Simms, which led to the finding of the gun with which he said the murder had been committed by Simms. As we have seen from the authorities quoted, such evidence might have been admissible and legitimate to prove Plummer’s guilt, in only two aspects of the case: 1st. As confessions against himself had he been jointly indicted and tried, though not evidence even in that event against his confederates or co-defendants, because the offense had been consummated before these evidentiary facts and circumstances existed. 2d. They were admissible evidence to prove Plummer’s guilt as a principal under the second count in which Simms was charged as his accomplice, because Plummer’s guilt had first to be established as a condition precedent to Simms’ conviction.

But Plummer not being on trial with Simms, and Simms being charged alone as a principal in the first count, no act, declaration, admission or confession of Plummer after the deed was committed was admissible as evidence against Simms on his trial upon the first count. Under one count the evidence was admissible; under the other wholly inadmissible. There was no way by which its opposite relation to the two counts could be reconciled. It must be manifest without further argument that the court should have compelled the election demanded by the defendant, and that in refusing to require the State to elect upon which count a conviction would be claimed a serious error was perhaps committed to the prejudice of the defendant.

Eight bills of exception were saved by defendant to the admission of testimony. Without discussing them seriatim, we are of opinion it is sufficient to classify them generally under two heads,—the evidence, outside the testimony of the accomplice Plummer, being almost entirely of a circumstantial character. We will, then, formulate the evidence under two heads: 1st. Circumstances which tended to throw light upon the transaction; and 2d. Confessions, statements and admissions made by other parties after the transaction and in the absence of this defendant. The former were clearly admissible; the latter clearly inadmissible. Under the former the court did not err in permitting Pete Williams to testify as to a conversation he heard between defendant and Avery with regard to a difficulty between the latter and the deceased, in which the defendant advised Avery that “night had no eyes.” It was a circumstance, however slight, tending to show the feeling of defendant towards his brother, the deceased; and in cases depending wholly upon circumstantial evidence the mind seeks to explore every possible source from which any light, however feeble, may be derived. Noftsinger v. State, 7 Texas Ct. App. 301. And so with regard to the purchase of the gun by defendant at Jewett. With regard to this fact the evidence of the accomplice was legitimate; as was also the evidence of the merchant from whom it was purchased, tending to corroborate the accomplice. Nor was there any error in permitting Esquire Gregory to testify where he had found the gun, and that in drawing the load from the barrel which was not discharged he found wadding upon the load similar to that found by him in the yard of the deceased recently after the homicide. To this extent there is no objection to Gregory’s testimony, though objectionable, as we shall presently see, in other respects.

In cases of circumstantial evidence, no definite line of demarcation can be drawn with regal’d to facts proximate and remote. The test is, do they tend to throw light upon the transaction? Greater latitude is allowed in the presentation of evidence where it is purely circumstantial than would be admissible where a conviction is sought upon direct and positive testimony. . Ballew v. State, 36 Texas, 98. The necessity for admitting circumstantial evidence in criminal matters is even greater than in civil matters, and it is adopted the more readily in proportion to the difficulty of proving the fact by direct evidence, and because of the ease with which it can be 'disproved by the proof of other facts inconsistent with it.

Nor was any error committed in allowing Dr. Camp to testify to and reproduce the evidence given by the deceased witness, Wash Pollock, on the former trial. The witness fully qualified himself to do so. Whatever may have been the doctrine formerly held, it seems now well settled that the person called to prove what a deceased witness testified on a former trial is not required to repeat the precise words of such witness, but it is sufficient if the witness is able to state the substance of what was sworn on the former trial. 1 Greenl. Ev. 165; Black v. State, 1 Texas Ct. App. 368; Dunlap v. State, 9 Texas Ct. App. 179.

We are of opinion, however, that the court did err in permitting the witness Pete Williams to testify to the conversation between Avery and Plummer after the homicide and in the absence of defendant. No acts or declarations of theirs were evidence against this defendant under such circumstances.

It was also error to permit the confessions and declarations of Plummer, made after his arrest, to Squire Gregory and others, to be introduced against this defendant under the first count; and, if admitted under the second count, the jury should have been expressly charged that they would consider them only with reference to Plummer’s guilt, and not as evidence of the guilt of defendant, except so far as his guilt was dependent upon the establishment in the first instance of Plummer’s guilt. The charge nowhere limits the evidence to this object, and to that extent the charge failed to apply the law to the facts under the second count, and was insufficient.

Other matters assigned as error and discussed in the able brief and argument of counsel for appellant are not passed upon and decided, for the reason that they are not likely to arise again or become of any importance upon a future trial of the case.

For the errors pointed out and discussed in this opinion the judgment of the court below is reversed and the cause remanded for a new trial.

Reversed and remanded.