Collier v. State

• Decision Date: 23 November 1927
• Docket Number: (No. 11190.)
• Citation: 300 S.W. 54
• Parties: COLLIER v. STATE.
• Court: Texas Court of Criminal Appeals

300 S.W. 54

COLLIER v. STATE.

(No. 11190.)

Court of Criminal Appeals of Texas.

November 23, 1927.

Commissioners' Decision.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Robert Collier was convicted of theft, and he appeals. Reversed and remanded.

Chastain & Judkins, of Eastland, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, theft of oil well pipe of over the value of $50; punishment, two years' confinement in the penitentiary.

The testimony for the state shows that appellant employed one Red Phelan to haul oil well pipe from a point south of Cisco, in Eastland county, to Breckenridge, where it was subsequently taken to Albany, in Shackelford county. Phelan in turn procured the services of E. E. Bryant to assist him in the hauling. Two truck loads were brought away and delivered at Albany. Appellant, Phelan, and Bryant were all indicted for the taking of this pipe, and Bryant and Phelan were under such indictments when they testified in the trial of this case against appellant.

The court in his charge submitted the question of whether or not said Phelan and Bryant were accomplices as an issue to be found by the jury. Proper exceptions were reserved to this part of the court's charge; the appellant contending that they were each accomplices as a matter of law, and that same was not an issue for the jury, but that the court should have charged directly that they were in law accomplices.

Article 711, C. C. P., provides, in substance, that persons charged as principals, accomplices, or accessories, whether in the same or in different indictments, cannot be introduced as witnesses for one another. The appellant would have therefore been precluded from using either of said parties as a witness in his behalf by virtue of said article last quoted. The state, having cut off this right from appellant by reason of said indictments, could not thereafter use the said witnesses against appellant, and have submitted as an issue in the trial their guilty connection with the crime charged while said indictments were still pending against them. They were accomplices as a matter of law, and the court should have in this case so instructed the jury, and his failure to do so was reversible error. Grissman v. State, 93 Tex. Cr. R. 15, 245 S. W. 438; Lowe v. State, 98 Tex. Cr. R. 501, 267 S. W. 270, and authorities there cited.

The court instructed the jury, at the request of the state, in substance, that one using an innocent agent to consummate the offense of theft was a principal, "whether or not the agent at the time of taking did or...