Chapman v. State

• Citation: 65 S.W. 1098
• Parties: CHAPMAN v. STATE.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 04 December 1901
• Court: Texas Court of Criminal Appeals

65 S.W. 1098

CHAPMAN v. STATE.¹

Court of Criminal Appeals of Texas.

December 4, 1901.

Appeal from district court, Dallas county; Chas F. Clint, Judge.

John Chapman was convicted of murder in the first degree, and appeals. Reversed.

Robt. B. Allen, Edgar B. Terrill, and Ford & Crawford, for appellant. J. C. Muse, Stillwell H. Russell, and Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.

This is a companion case to that of Faulkner v. State (just decided) 65 S. W. 1093.

In bill of exceptions No. 7, appellant complains of the following portion of the court's charge: "If you believe from the evidence beyond a reasonable doubt that in Dallas county, Texas, on or about December 3, 1900, the defendant, either alone or as a principal with others, did steal or was present at the stealing of money and shoes, or either, from the person of C. P. Bane, and did pour turpentine or other inflammable liquid upon his person, or was present when turpentine or other inflammable liquid was poured upon him, and did ignite with a match said fluid or liquids, or was present when the same was done by others; and that he (defendant) did then and there know of such theft, turpentining and setting on fire of said C. P. Bane, and was the owner or one of the owners of the place in which said act occurred, then he (defendant) would be guilty, as a principal, of murder by torture, in the first degree, and you should so find, and frame your verdict as above directed." Appellant's objections are: (1) Because the language used is upon the weight of evidence; (2) because the issue of murder by torture is not raised by the evidence, (3) and, if raised, should have been submitted to the jury as a question to be determined by them from all the evidence in the case; (4) because in applying the law to the facts the court permits the jury to convict defendant as a principal if they believe beyond a reasonable doubt that he was present and knew that the offense was about to be committed, and was the owner, or one of the owners, of the place in which said act occurred, and that regardless of whether or not defendant was acting together with others who actually committed the offense. In other words, the court makes the mere knowledge that an offense is being committed, or about to be committed, together with defendant's presence and ownership, or part ownership, of the place where the offense occurred, sufficient to constitute defendant a principal in the commission of the offense. We think the issue of murder by torture is raised by the evidence, and the definition of torture as contained in the court's charge is correct. Nor do we think the court assumes in the charge that if death result, the killing would be murder by torture, for the court had told the jury what was murder by torture, and then tells the jury if defendant did pour turpentine or other inflammable fluid upon his person, etc., and deceased was burned up, it would be murder by torture. The vice in this charge is embodied in the last contention of appellant. The mere fact that appellant may have been owner or part owner of the saloon where the burning occurred would not make him guilty of the murder, and such should not have been embodied in the charge. The most that such circumstances could be used for would be as tending to show guilt. Certainly the fact that appellant owned the house would not per se establish that he was particeps criminis to murder committed in said house. It might be used by the jury as a circumstance in passing upon the question as to whether appellant co-operated, consented, and conspired with the other persons in the commission of the crime; but, being a mere circumstance, it would not require a charge by the court thereon. We think the charge of the court is erroneous, as contended by appellant, for it makes the bare presence and knowledge on his part that an offense was about to be committed, and that he was the owner or part owner of place, proof positive of the fact that he was acting together with others in the commission of the offense. Certainly the presence of a person at the place where the crime is committed is a prerequisite for the conviction of such party as a principal. Knowledge on the part of the person that the crime is being committed is also a prerequisite to his guilt. But neither of said facts would necessarily establish appellant as a principal to the crime with which he was charged. The court should have instructed the jury, after defining principals as laid down by the statute, that, if defendant was present, knowing the unlawful intent of the other parties, naming them, and that he adopted said intent, and while present he aided by acts or encouraged by words or gestures and consented to the commission of the crime, then, in that event, he would be guilty as a principal. It is not necessary that the principal should do some act at the time, aside from being present, in order to constitute him a principal, but he must encourage by acts or gestures, either before or at the time of the commission of the offense, with full knowledge of the intent of the parties who commit the offense, otherwise he cannot be convicted as a principal.

By bill of exceptions No. 8, appellant complains of the following portion of the charge: "If you believe from the evidence, beyond a reasonable doubt, that in Dallas county, Texas, on or before December 3, 1900, that any person or persons bought turpentine or other inflammable liquid, and carried it into the saloon of Chapman & Faulkner, and that said turpentine or other such fluid was poured upon the body of said C. P. Bane by any person or persons, and that said turpentine or other inflammable fluid was set on fire by an ignited match by any person or persons, and that defendant was present in said saloon, and knew said turpentine or other inflammable fluid was poured or being poured or placed upon said Bane by any person or persons and said match ignited, and fired said turpentine or other inflammable fluid by any person or persons, and that such act of setting afire said turpentine or other inflammable fluid by any person or persons might probably result in the death of said Bane, and that said defendant then and there reasonably knew that such act might so result, and that defendant was then and there the owner or one of the owners of said saloon, and that said burning of said Bane occurred in said saloon, and caused the death of said Bane, then, in that event, defendant would be guilty, as a principal, of murder in the first degree, by torture, whether he participated in the said act or not, and whether it was intended to kill the said Bane or not, or whether the said Bane had been robbed or not; and, without reference to what the unlawful intent of setting the said Bane on fire may have been, you should so find and frame your verdict as above directed." This charge is clearly erroneous. The fact that appellant should have consented to the pouring of turpentine upon the person of deceased would not per se make him guilty of murder. In all prosecution for crime under our law the gist of every offense is the intent of the defendant. If defendant poured fluids upon the person of deceased without any thought or expectation that some one else would ignite the turpentine, and thereby cause the death of deceased, he would not be guilty of any grade of offense higher than a misdemeanor. In order to make appellant guilty, he must adopt the intent of that party, and the proof must satisfy the jury beyond a reasonable doubt that Chapman, while present and knowing the unlawful intent of the other parties, assisted them not only in pouring turpentine, but in all other criminal acts leading up to the destruction of the life of deceased, and adopted said acts as his own. The conclusion of the above clause: "Then, and in that event, defendant would be guilty, as a principal, of murder in the first degree, by torture, whether he participated in the said act or not, or whether the said Bane had been robbed or not, and without reference to what the unlawful intent of setting the said Bane on fire may have been." This is clearly contradictory of the law of principals as given by the court in the first part of the charge. Certainly, if appellant did not participate in the crime, he would not be guilty; and if he did not intend to kill deceased he would not be guilty. But if appellant, either alone or acting with others, placed turpentine upon deceased, which turpentine was by appellant or the others with whom he was acting set on fire, and appellant reasonably expected that death would ensue from said act, and, so believing, set fire to the said Bane,...