White, Presiding Judge.
Six parties were jointly charged with the theft of the cattle mentioned in the indictment, to-wit, M. M. Smith (this appellant), Jim Smith, Dave Smith, Tom Saunders, Frank Saunders, and Bud Taylor. A severance was had and each of the parties was tried separately. Bud Taylor was tried before this appellant, but his conviction was set aside and a new trial awarded him after the conviction of this appellant.
We will make a brief and succinct statement of such of the material facts shown in evidence as are necessary to explain and illustrate the questions presented on this appeal. Thirteen head of cattle belonging to Eugene and W. A. Trammell, branded some WT (with a bar below), some WT (with a bar below and semi-circle above), and others XZ on the hip, and all branded SD on the neck, were running as estrays in the neighborhood of one Isaac Sweet, in Erath county, and had been for some months prior to the fifteenth day of July, 1885. On or about the fifteenth day of July, Jim Smith and Dave Smith came to Sweet’s and said they were looking for a bunch of cattle branded SD, and Dave said he had a power of attorney from his brother to get the cattle. Dave Smith, Jim Smith, Tom and Frank Saunders hunted for and got up the cattle and drove them off on the fifteenth of July, M. M. Smith and Bud Taylor neither being present, but both being at their homes in Parker county, some forty miles distant.
Prior to the date of the taking, however, it is made to appear by the evidence that on the third of July, Bud Taylor proposed to the witness James Lentz that witness should go with another party and get a bunch of stray cattle, and bring them up to Cartersville prairie, where he, Taylor, would meet him with some of his, Taylor’s own cattle, and they would throw the cattle together, take them to Fort Worth and there sell them and divide the profits. Taylor owned some forty or fifty head of cattle branded WT. The witness Lentz declined to go. A day or so afterwards, some time between the fourth and seventh ■ of July, Bud Taylor was seen on two different occasions at appellant M. M. Smith’s house, holding private conferences with him. During the week succeeding these conferences appellant M. M. Smith borrowed from the witness Morris a horse, saying he wished to go after a bunch of cattle which he had bought out west. From some cause not explained he did not go, but he let hie brother Jim Smith have the borrowed horse to ride after the [119] cattle. On Sunday, the twelfth, this defendant, having doubtless determined not to go in person, got the witness Henry Lentz to write for him a power of attorney authorizing Dave Smith to gather cattle branded SD; and on the same day defendant proposed to James Lentz, the samé party to whom Bud Taylor had made his proposition, that he, Lentz, should go with his, defendant’s brother Dave Smith down below Gordon after a bunch of cattle he, defendant, claimed to have bought, and at the same time explained to witness why Bud Taylor could not go. Lentz did not go, but Jim Smith went with his brother Dave, and they started on the twelfth. As above stated, these parties, Dave and Jim Smith, and Tom and Frank Saunders, were together and took the cattle and drove them from Isaac Sweet’s place in Erath county on the fifteenth of July. On the sixteenth of July, Tom Saunders and a man by the name of Brooks were seen in Parker county, on the Stephenville and Weatherford road, with a bunch of some ten or fifteen head of cattle, taking them in direction of Weatherford. Thirteen miles south of Weatherford, in Parker county, the witness Wesley, on the sixteenth of July, and about twelve or one o’clock in the day, saw Jim Smith and Dave Smith, and a third party whose description suits exactly the description of Tom Saunders, driving a bunch of cattle containing between twenty-five and thirty head, going in the direction of Weatherford.
After the return of Jim and Dave from the expedition, in a conversation with the witness Morris, whose horse had been ridden by Jim, Jim Smith told witness that they had driven the cattle through to Cartersville prairie, “where Monroe (M. M., the appellant,) had gone to get them to take them to Fort Worth.” Morris asked him “if he had got the cattle for Bud Taylor?” and he said “yes.” “I said Monroe (M. M.) says they are his cattle; to which Jim replied, ‘ I believe they are partners.’ ” After Jim’s return Monroe left. Morris, the witness, says: “When Monroe rode off he said he was going to take the cattle to Fort Worth to sell them. He returned Sunday evening and I asked him if he had sold the cattle. He said, ‘Ho; cattle are off like hell,’ (by which I understood him to mean that the price of cattle was low.) He then added that he had left the cattle in a pasture near Fore Worth.” About the last of July, Eugene Trammell, one of the owners, recovered these cattle at the place of a man named Ketchum, in Parker county. M. M. [120] Smith, this appellant, gave him an order on Ketchum for the cattle.
Such are the material facts established by the evidence. A number of bills of exceptions to the admission,'over objection, of testimony claimed to be irrelevant, illegal and inadmissible, appear in the record.
It is insisted that if any conspiracy is established between ap-' pellant and Bud Taylor, then that such conspiracy is not shown to have existed on the third of July, and that any acts, declarations or conduct of Taylor, in the absence of defendant, prior to the conspiracy, and not in furtherance thereof, cannot be used as evidence against this defendant. And we are cited to the general rule as announced in Cox, Ryan et als. v. The State, 8 Texas Court of Appeals, 254, to the effect that the evidence of what was said and done by the other conspirators must be limited to their acts and declarations done while the conspiracy was pending and in furtherance of the design, “what was said by them before or afterwards not being within the principles of admissibility.” This rule is unquestionably correct. The old rule, however, that a conspiracy must first be established ipso facto before proof of acts and declarations of the individual conspirators are admissible against each other is now exploded. “Ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator the conspiracy should itself be first established prima facie, and to the satisfaction of the judge of the court trying the cause; but this can not always be required. It can not well be required where the proof depends upon a vast amount of circumstantial evidence—a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually exists, it will he considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.” (Cox v. The State, supra.) A conspiracy to commit crime is rarely ever susceptible of proof by direct or positive proof.
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White, Presiding Judge.
Six parties were jointly charged with the theft of the cattle mentioned in the indictment, to-wit, M. M. Smith (this appellant), Jim Smith, Dave Smith, Tom Saunders, Frank Saunders, and Bud Taylor. A severance was had and each of the parties was tried separately. Bud Taylor was tried before this appellant, but his conviction was set aside and a new trial awarded him after the conviction of this appellant.
We will make a brief and succinct statement of such of the material facts shown in evidence as are necessary to explain and illustrate the questions presented on this appeal. Thirteen head of cattle belonging to Eugene and W. A. Trammell, branded some WT (with a bar below), some WT (with a bar below and semi-circle above), and others XZ on the hip, and all branded SD on the neck, were running as estrays in the neighborhood of one Isaac Sweet, in Erath county, and had been for some months prior to the fifteenth day of July, 1885. On or about the fifteenth day of July, Jim Smith and Dave Smith came to Sweet’s and said they were looking for a bunch of cattle branded SD, and Dave said he had a power of attorney from his brother to get the cattle. Dave Smith, Jim Smith, Tom and Frank Saunders hunted for and got up the cattle and drove them off on the fifteenth of July, M. M. Smith and Bud Taylor neither being present, but both being at their homes in Parker county, some forty miles distant.
Prior to the date of the taking, however, it is made to appear by the evidence that on the third of July, Bud Taylor proposed to the witness James Lentz that witness should go with another party and get a bunch of stray cattle, and bring them up to Cartersville prairie, where he, Taylor, would meet him with some of his, Taylor’s own cattle, and they would throw the cattle together, take them to Fort Worth and there sell them and divide the profits. Taylor owned some forty or fifty head of cattle branded WT. The witness Lentz declined to go. A day or so afterwards, some time between the fourth and seventh ■ of July, Bud Taylor was seen on two different occasions at appellant M. M. Smith’s house, holding private conferences with him. During the week succeeding these conferences appellant M. M. Smith borrowed from the witness Morris a horse, saying he wished to go after a bunch of cattle which he had bought out west. From some cause not explained he did not go, but he let hie brother Jim Smith have the borrowed horse to ride after the [119] cattle. On Sunday, the twelfth, this defendant, having doubtless determined not to go in person, got the witness Henry Lentz to write for him a power of attorney authorizing Dave Smith to gather cattle branded SD; and on the same day defendant proposed to James Lentz, the samé party to whom Bud Taylor had made his proposition, that he, Lentz, should go with his, defendant’s brother Dave Smith down below Gordon after a bunch of cattle he, defendant, claimed to have bought, and at the same time explained to witness why Bud Taylor could not go. Lentz did not go, but Jim Smith went with his brother Dave, and they started on the twelfth. As above stated, these parties, Dave and Jim Smith, and Tom and Frank Saunders, were together and took the cattle and drove them from Isaac Sweet’s place in Erath county on the fifteenth of July. On the sixteenth of July, Tom Saunders and a man by the name of Brooks were seen in Parker county, on the Stephenville and Weatherford road, with a bunch of some ten or fifteen head of cattle, taking them in direction of Weatherford. Thirteen miles south of Weatherford, in Parker county, the witness Wesley, on the sixteenth of July, and about twelve or one o’clock in the day, saw Jim Smith and Dave Smith, and a third party whose description suits exactly the description of Tom Saunders, driving a bunch of cattle containing between twenty-five and thirty head, going in the direction of Weatherford.
After the return of Jim and Dave from the expedition, in a conversation with the witness Morris, whose horse had been ridden by Jim, Jim Smith told witness that they had driven the cattle through to Cartersville prairie, “where Monroe (M. M., the appellant,) had gone to get them to take them to Fort Worth.” Morris asked him “if he had got the cattle for Bud Taylor?” and he said “yes.” “I said Monroe (M. M.) says they are his cattle; to which Jim replied, ‘ I believe they are partners.’ ” After Jim’s return Monroe left. Morris, the witness, says: “When Monroe rode off he said he was going to take the cattle to Fort Worth to sell them. He returned Sunday evening and I asked him if he had sold the cattle. He said, ‘Ho; cattle are off like hell,’ (by which I understood him to mean that the price of cattle was low.) He then added that he had left the cattle in a pasture near Fore Worth.” About the last of July, Eugene Trammell, one of the owners, recovered these cattle at the place of a man named Ketchum, in Parker county. M. M. [120] Smith, this appellant, gave him an order on Ketchum for the cattle.
Such are the material facts established by the evidence. A number of bills of exceptions to the admission,'over objection, of testimony claimed to be irrelevant, illegal and inadmissible, appear in the record.
It is insisted that if any conspiracy is established between ap-' pellant and Bud Taylor, then that such conspiracy is not shown to have existed on the third of July, and that any acts, declarations or conduct of Taylor, in the absence of defendant, prior to the conspiracy, and not in furtherance thereof, cannot be used as evidence against this defendant. And we are cited to the general rule as announced in Cox, Ryan et als. v. The State, 8 Texas Court of Appeals, 254, to the effect that the evidence of what was said and done by the other conspirators must be limited to their acts and declarations done while the conspiracy was pending and in furtherance of the design, “what was said by them before or afterwards not being within the principles of admissibility.” This rule is unquestionably correct. The old rule, however, that a conspiracy must first be established ipso facto before proof of acts and declarations of the individual conspirators are admissible against each other is now exploded. “Ordinarily, when the acts and declarations of one co-conspirator are offered in evidence against another co-conspirator the conspiracy should itself be first established prima facie, and to the satisfaction of the judge of the court trying the cause; but this can not always be required. It can not well be required where the proof depends upon a vast amount of circumstantial evidence—a vast number of isolated and independent facts. And in any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced on the trial, taken together, shows that a conspiracy actually exists, it will he considered immaterial whether the conspiracy was established before or after the introduction of such acts and declarations.” (Cox v. The State, supra.) A conspiracy to commit crime is rarely ever susceptible of proof by direct or positive proof.
1. It is objected that the evidence permitted of what transpired between the co-conspirator Bud Taylor and the witness James Lentz on the third of July, with reference to Taylor’s proposition that the witness would go and get the stray cattle and bring them to Cartersville prairie, where Taylor would throw some of his own cattle with them, and drive them off and [121] sell, and divide profits, were statements of independent acts and declarations of Taylor before a conspiracy is shown to have existed between defendant and Taylor. We are of opinion that the circumstances, whilst not conclusive, perhaps, are sufficiently cogent to warrant the inference that a conspiracy between the parties did exist at that time. Taylor tried to induce the witness to go after a bunch of stray cattle, which were to be driven to Cartersville prairie, and there mixed with other cattle. Défendant sent his brothers to get a bunch of stray cattle, he and Taylor having had a conference after Lentz refused to go. The brothers go and get the stray cattle, thirteen hea,d, mix them with ten or twelve head the next day, drive the twenty-five or thirty head to Cartersville prairie. One of the brothers says that he has brought back the Taylor cattle, and that his brother M. M. (appellant) and Taylor are partners in the cattle. We think these facts warrant the inference that the conspiracy already existed when the conversation occurred between the witness Lentz and Taylor on the third of July. At all events we are not prepared to say, in view of the other evidence, that the'court erred in admitting this .testimony.
2. It is insisted that the court erred in admitting in evidence, over objection of defendant, the testimony of Guyger to the effect that on the sixteenth of July, the day after the alleged stolen cattle were taken, he, the witness, saw Tom Saunders and Willis Brooks' driving ten or twelve head of cattle along the road towards Weatherford. The objection is that there is no evidence that these cattle were stolen, or, if stolen, that they were stolen at the same time the cattle in question were stolen; or that this appellant was in any manner connected with these particular cattle. Tom Saunders was one of the parties who, in connection with Jim and Dave Smith, took and drove the stolen animals from Sweet’s. There were thirteen cattle taken. The witness Wesley says that he saw Jim and Dave Smith, and a man whose description suits that of Tom Saunders exactly, about two hundred and fifty yards south of the Brazos river, at Buckner’s crossing on the Stephenville and Weatherford road, driving a bunch of cattle of twenty-five or thirty head. Guyger had seen Brooks and Tom Saunders before they got to Buckner’s crossing. At Buckner’s crossing Tom Saunders is seen with Dave and Jim Smith, and their herd of thirteen head has increased to twenty-five or thirty head. If for no other purpose, we are of the opinion the evidence was entirely legitimate to show the manner of, and [122] to account for, the increase in the herd of the stolen cattle. But, besides this, the defendant had told Morris that he had bought thirty or thirty-two head of cattle out west, and that he was only to pay for what he got; and this was only a day or two before Jim and Dave Smith started after the cattle. The rule is that evidence of other offenses than the one for which a party is on trial, or evidence of criminal transactions of a similar character, is admissible “when it is necessary to establish identity by developing the res gestee, or making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial.” (Galbraith v. The State, 41 Texas, 567.) We are clearly of the opinion that this evidence tended to establish the identity and res gestee of the transaction, and was a legitimate link in the chain of circumstances connected with the crime for which defendant was on trial.
3. But it is most urgently and seriously contended that the court erred in charging the law as to principal offenders with regard to this defendant’s liability, because it is said that there was no testimony upon which it could possibly be based, the evidence having clearly established that defendant was not present and actually participating in the theft at the time the animals were taken by Jim and Dave Smith. ■
1 ‘All persons are principals who are guilty of acting together in the commission of an offense.” (Penal Code, Art. 74.) But again, “if any one, by employing a child, or other person who can not be punished, to commit an offense * * * * or by any other indirect means, cause another to receive an injury to his person or property, the offender, by the use of such indirect means, becomes a principal.” (Penal Code, Art. 77.)
Mr. Bishop says: “ One plain proposition is that there can be no crime without a principal. There may be more principals than one, but there must be at least one. Therefore a man whose sole will procures a criminal transaction is principal, what ever physical agencies he employs, whether he is present or about when the thing is done.” (1 Bish. Crim. Law, 7 ed., sec. 640.) Again he says: “And because there must always be a principal, one is such who does the criminal thing through an innocent agent, though personally absent. (Id., sec. 651.)
But the question is, can a party under any circumstances be a principal offender under our statutes when he is not present at the time and plane, and participating in the commission of the crime, where the party actually committing it is not an innocent [123] but a guilty agent, by virtue of his own guilty knowledge and intent? Mr. Bishop, as a rule, says not, but holds that the relation of the instigator becomes changed from that of a principal to that of an accessory before the fact (or an accomplice), on account of the changed relationship of his agents. He says: “But, if the agent employed incurs guilt, then the employer is simply an accessory before the fact.” (Id.) Only two authorities are cited in support of the text, and they have not been accessible.
If correct in principle, the doctrine cannot be of universal application under our code, where all persons are principals who are guilty of acting together in the commission of an offense. Parties may act together, whether they are bodily present together or not.
We believe that the distinction drawn by us between principal offenders'and accomplices as known to our code has been as clearly and accurately stated, as we are able to present it, in the cases of Cook v. The State, 14 Texas Court of Appeals, 96, and Bean v. The State, 17 Texas Court of Appeals, 61. In the former case it is said: “We are of opinion that the proper distinction between these two characters of offenders is this: The acts constituting an accomplice are auxiliary only, all of which may be and are performed by him anterior and as inducements to the crime about to be committed; whilst the principal offender not only may perform some antecedent act in furtherance of the commission of the crime but, when it is actually committed, is doing his part of the work assigned him in connection with the plan and furtherance of the common purpose, whether he be present where the main fact is to be accomplished or not. Where the offense is committed by the perpetration of different parts which constitute one entire whole, it is not necessary that the offenders should be in fact together at the perpetration of the offense, to render them liable as principals. In other words, an accomplice under our statute is one who has completed his offense before the crime is actually committed, and whose liability attaches after its commission by virtue of his previous acts in bringing it about through the agency or in connection with third parties. The principal offender acts his part individually in furtherance of and during the consummation of the crime.”
In Bean v. The State, it is said: “'The dividing line between the two is the commencement of the commission of the principal offense. If the parties acted together in the commission of the [124] offense, they are principals. If they, agreed, to commit the offense together, but did not act together in its commission, the one who actually committed it is the principal, while the other, who is not present at the commission, and who was not in any way aiding in its commission, as by keeping watch or by securing the safety or concealment of the principal, would be an accomplice. To constitute a principal, the offender must either be present where the crime is committed or he must do some act during the time when the offense is being committed which connects him with the act of commission in some of the ways named in the statute. Where the acts committed occur prior to the commission of the principal offense, or subsequent thereto, and are independent of, and disconnected with, the actual commission of the principal offense, and no act is done by the party during the commission of the principal offense, such a party is not a principal offender, but is an accomplice or an accessory according to the facts. ”
In Welsh’s case, 3 Texas Court of Appeals, 413, where the employer ordered his servants to take all the cattle they could find, and that in the meantime he would go ahead and make arrangements to ship or sell them, he was held to be a principal offender, because he was engaged at the time of the theft in performing his part in the consummation of the conspiracy to steal and dispose of them.
In Scales’s case, 7 Texas Court of Appeals, 361, part of the conspirators were to steal the horses in question, whilst the rest were to get up provisions and an outfit to enable them all jointly to take the horses to Fort Elliott and sell them. (See statement in McKeen v. The State, 7 Texas Ct. App., 631.) They were all held principal offenders because doing their separate parts and acting together in consummating the conspiracy.
In McCampbell v. The State, 9 Texas Court of Appeals, 124, it is said: “If the facts should show an actual participancy by appellant in the original fraudulent taking, a conviction may be sustained for the offense charged, although the appellant may not have been personally present at such taking.”
In Cohea v. The State, 9 Texas Court of Appeals, 173, it is said: “He need not be actually present at the taking, if the act was committed in pursuance of a common intent and a previously formed design where the mind united and concurred with that-of the actual taker.”
As before stated, evidence' in proof of a conspiracy to commit [125] crime will generally, from the nature of the case, be circumstantial. It is not necessary to prove that the defendants came together and actually agreed in terms to have that design and pursue it by common means. If it be proved that defendants by their acts pursued the same objects, often by the same means, one performing one part and another another 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 the conclusion that they were engaged in a conspiracy to effect that object (Slough’s case, 5 Fed. Rep., 680), and under our statute such acting together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. The State, 4 Texas Ct. App., 492; Heard v. The State, 9 Texas Ct. App., 1; Wright v. The State, 18 Texas Ct. App., 358), and they are all principals and acting together as long as any portion or object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Hence, “where in larceny it was shown that the conspiracy extended as well to the dividing of the stolen goods as to the theft; what one did between the stealing and the dividing was deemed good evidence against both.” (2 Bish. Crim. Proc., 230, citing Scott v. The State, 30 Ala., 503.) This doctrine is expressly recognized and adopted by us in O’Neal v. The State, 14 Texas Court of Appeals, 582, and the same rule is announced in Allen v. The State, 12 Lea, Tennessee, 424.
Now, in applying the law as above stated to the case in hand, if Jim and Dave Smith were the innocent agents of M. M. Smith, then M. M. Smith was a principal. If there was a conspiracy between all the parties to commit the theft, the part to be done by Jim and Dave being to take the property, and the part assigned to M. M. being the sale after it was so taken, then all were principal offenders.
The charge of the court was an able and complete elucidation of these principals of law as applicable to the facts; and it was moreover expressed in such manner as that the rights of the defendant were specially guarded against any evidence which might in certain contingencies be inapplicable to his connection with the crime. No additional instructions were asked. '
•We have given this record our most careful attention and consideration, and, under the law and facts, we have found no [126] error either in the conviction or the rulings complained of as error. The judgment is affirmed.
Opinion delivered March 23, 1886.
Affirmed.