Dent v. State

• Decision Date: 05 June 1901
• Citation: 65 S.W. 627
• Parties: DENT v. STATE.
• Court: Texas Court of Criminal Appeals

65 S.W. 627

DENT v. STATE.

Court of Criminal Appeals of Texas.

June 5, 1901.

Appeal from district court, Cherokee county; Tom C. Davis, Judge.

W. J. Dent was convicted of being accessory to murder, and appeals. Affirmed.

See 59 S. W. 267.

Weeks & Fleager and Robt. B. Seay, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted as accessory to murder, and his punishment assessed at confinement in the penitentiary for life.

The record shows that in November, 1894, in Hemphill county, Tex., one Tom T. McGee was killed. A short time after the killing George Isaacs was arrested, and incarcerated in jail, charged with being an accomplice to the murder of McGee. Subsequently he was indicted by the grand jury of Hemphill county, the indictment charging him as a principal and as an accomplice with Jim Harbolt and Joe Blake in the killing of McGee, and as an accomplice to persons to the grand jury unknown in the killing of McGee. In October, 1895, on a change of venue to Hardeman county, Isaacs was tried and convicted, the jury returning a general verdict finding him guilty of murder as charged in the indictment, without determining whether they found him guilty as principal or as an accomplice, assessing his punishment at confinement in the penitentiary for life. The evidence upon the trial of Isaacs showed that at the time of the homicide Isaacs was not present and participating in the same, but that his connection was as a party to the conspiracy between himself and the above-mentioned parties, and probably others, to hold up and rob a train at Canadian, Tex., the scene of the homicide; and in the attempted perpetration of said robbery McGee was killed. For a further and more detailed statement of the evidence on the trial of Isaacs, see Isaacs v. State, 36 Tex. Cr. R. 505, 38 S. W. 40. After the conviction of Isaacs, he was duly sentenced and incarcerated in the state penitentiary at Rusk, Tex. About the 27th day of September, 1899, a pardon was received at the Rusk penitentiary, by the authority of which George Isaacs was released from the penitentiary. The evidence shows that appellant, Dent, forged the pardon, which forgery shows intimate knowledge on part of appellant of Isaacs' guilt. The indictment for accessory to murder is predicated upon the foregoing state of facts, in that by said forged pardon appellant aided Isaacs to evade the execution of his sentence.

Appellant presented the following motion to quash the indictment: "Defendant excepts to the indictment filed against him, and says the same charges him with no offense against the laws of the state. Defendant specially excepts to the first count in said indictment because the same does not charge any act that was done by defendant or any means used by defendant in the perpetration of any offense. Nor does it set out any means used by defendant in assisting or aiding the said George Isaacs. In fact, said count of the indictment does not allege any facts, matters, circumstances, act, or anything else to give notice to this defense of what was expected to be proved against this defendant by the state." Appellant's main insistence seems to be that the first count of the indictment is defective, in that it does not charge any act done by defendant or any means used by defendant in the perpetration of any offense. An indictment similar to the first count here has been held good in Gann v. State (Tex. Cr. App.) 57 S. W. 837, and, without further discussion of the matter, we refer to that case. We think the count is good. Even conceding the first count is insufficient, yet in view of the fact that the verdict of the jury against appellant is general, and that the second count does specifically state the means used by appellant in aiding his principal, George Isaacs, to evade the execution of his punishment, the supposed error becomes harmless. Pitner v. State, 37 Tex. Cr. R. 272, 39 S. W. 662; Henderson v. State, 2 Tex. App. 88; Southern v. State, 34 Tex. Cr. R. 144, 29 S. W. 780, 53 Am. St. Rep. 702.

Appellant's next contention in his able brief is based upon his seventh bill of exceptions, to wit: "The court erred in admitting in evidence the certified copy of a judgment of conviction of murder in the first degree in cause No. 334 (State of Texas v. George Isaacs), from the district court of Hardeman county. The district attorney announced this copy of judgment was introduced for the purpose of proving the guilt of George Isaacs of the murder of Tom T. McGee, as charged in the indictment against defendant, Dent. Appellant contends that, if said judgment was admissible at all, it could only be for the purpose of proving George Isaacs, the principal, had been tried and convicted, in order to comply with article 90, Pen. Code, and was clearly inadmissible, and in violation of section 10 of the bill of rights and the sixth amendment to the constitution of the United States." To support appellant's position, he cites us to Cline v. State, 36 Tex. Cr. R. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850, and to Kirby v. U. S., 174 U. S. 47, 19 Sup. Ct. 574, 43 L. Ed. 890. We do not think the case of Cline v. State, supra, is at all in point on the question here involved. In Kirby's Case, supra, the court was considering the following matter: Under the act of congress of March 3, 1875, it is provided, where one is convicted of feloniously stealing stamps and carrying them away from the post office, and upon a subsequent trial of a third party for receiving said stamps, the judgment of conviction of the principal shall be conclusive evidence against said receiver that the property of the United States therein described had been embezzled, stolen, and purloined. Justice Harlan, delivering the opinion of the court, held that the provisions of the statute violated the clause of the constitution of the United States which declares that in all criminal prosecutions the accused shall be confronted with the witnesses against him. By the facts it appears that Wallace, Baxter, and King (the first two upon pleas of guilty, and the last upon trial) had been adjudged guilty of the theft of stamps from the United States post office. In the trial of Kirby for receiving said stolen property the judgments against the three first-named parties were introduced in evidence under the terms of the above-quoted statute. Justice Harlan said: "As heretofore stated, the crime charged against Wallace, Baxter, and King and the crime charged against Kirby were wholly distinct; none the less so because in each case it was essential that the government should prove that the property described was actually stolen. The record of the proof of a vital fact in one prosecution could not be taken as proof in the other of the existence of the same fact. The difficulty was not met when the trial court failed, as required by the act of 1875, to instruct the jury that the record of the conviction of the principal felons was conclusive evidence of the fact that the property had been actually stolen, but merely said that such record made a prima facie case as to such fact. The fundamental error in the trial below was to admit in evidence the record of the conviction of the principal felons as competent proof for any purpose. That those persons had been convicted was a fact not necessary to be established in the case against the alleged receiver; for, under the statute, he could be prosecuted even if the principal felons had not been tried or indicted." From the excerpt quoted, and after a careful perusal of the entire opinion, it will appear that the Kirby Case is not in point upon the question here at issue, since, as said by Justice Harlan, one can be convicted of receiving stolen property before indictment or conviction of the thief. We see another distinction between the Kirby Case and the one at bar, in this: The judgment of conviction of the thief would be evidence solely of the fact that Wallace, Baxter, and King had stolen some stamps; but said judgment, after its introduction, would not be any evidence going to show that the stamps so stolen by them were the stamps that Kirby was alleged to have received, knowing them to have been stolen. But in the case at bar, if Isaacs killed McGee, the judgment adjudges him guilty of that offense, and the evidence in this case shows appellant aided Isaacs to escape the execution of his sentence for the murder of McGee. We do not understand that the supreme court of the United States in the Kirby Case, supra, were passing upon the ordinary doctrine of accessory after the fact, or the character and kind of proof necessary to make out a conviction of the accessory. The receiver of stolen property is not an accessory, as ordinarily understood, since the guilt of the receiver does not depend in any sense upon the guilt or conviction of the thief. Be this as it may, if Kirby's Case be correct, that the judgment of conviction of the principal in the trial of an accessory is not admissible for any purpose, as a casual reading of the decision might indicate, then we say that said authority is so at variance with the long line of precedents on the subject that we can not follow it.

We do not think the decision in the Kirby Case, supra, applies to the introduction of the judgment against Isaacs in this case. We think the question considered by the court in the Kirby Case is altogether at variance with the question before us in this case. Appellant concedes in his argument that the judgment is admissible for the purpose of showing that Isaacs, the principal, has been tried and convicted, in order to comply with article 90, Pen. Code. We apprehend appellant would further concede the judgment was admissible as a predicate for a charge on the part of the trial court as to the punishment that should be inflicted upon the accessory after the fact, since article 88, Id., provides: "Accessories to offense shall be...