Durham v. State
| Decision Date | 03 April 1929 |
| Docket Number | (No. 12319.) |
| Citation | 16 S.W.2d 1092 |
| Parties | DURHAM v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Jones County; W. R. Chapman, Judge.
W. H. Durham was convicted of unlawful possession for purpose of sale of intoxicating liquor, and he appeals. Affirmed.
See, also, 106 Tex. Cr. R. 85, 290 S. W. 1092; 7 S.W.(2d) 92.
Kirby, King & Overshiner, of Abilene, and Murchison & Davis, of Haskell, for appellant.
A. A. Dawson, State's Atty., of Austin, for the State.
Offense, the unlawful possession for the purpose of sale of intoxicating liquor; penalty, two years in the penitentiary.
Appellant was arrested by an officer at Hamlin, Jones county, as he started to get in a car. The car was searched and 17 quarts of whisky were found therein. At the time one Chester Smith was in the car. Chester Smith was jointly indicted with appellant, but his case prior to this trial had been dismissed. Chester Smith testified in part:
It is insisted that the court erred in failing to charge that Smith was an accomplice. Appellant's contention is without merit, as by the terms of article 670, Pen. Code 1925, a witness in this character of case who is shown to be a participant in the offense is exempted from operation of the accomplice statute. Jaggers v. State, 104 Tex. Cr. R. 174, 283 S. W. 527.
The court charged the jury: "All persons are principals who are guilty of acting together in the commission of an offense." Applying the law to the facts, he required the jury to believe beyond a reasonable doubt that appellant unlawfully possessed, for the purpose of sale, spirtuous, vinous, and malt intoxicating liquors. He did not specifically apply the law of principals to the facts of the case. Exceptions were urged to the charge of the court, which, in substance, are because there are no facts in this case warranting the court submitting in his charge the law of principals; (2) that the law of principals was not applied to the facts in the case; and (3) the quoted portion of the court's charge was upon the weight of the evidence.
If any defensive issue was raised by the testimony of the fact of appellant acting as a principal, then the court should have affirmatively applied the law of principals to the facts of the case and authorized an acquittal if the jury had a reasonable doubt as to the existence of any defensive fact raised by the testimony. Gentry v. State, 24 Tex. Cr. App. 478, 6 S. W. 321. But it is a further rule of law that the charge should conform to the facts and that it is error to submit any theory of the case not made by the facts which is adverse to the accused. Finks v. State, 84 Tex. Cr. R. 536, 209 S. W. 158. The court authorized the conviction of the appellant as a principal offender. There was no testimony raising any other issue. The effect of the second of appellant's objections, above mentioned, is that the jury was not authorized to convict him on a theory additional to that submitted by the court. Of course, if the court charged the law of principals under article 65, P. C., and the evidence suggested that appellant was merely present and did not participate in the commission of the offense, such defensive matters must be affirmatively submitted. Davis v. State, 85 Tex. Cr. R. 15, 209 S. W. 749. If he had agreed to the commission of the offense, but was not present, he was entitled to an affirmative presentation of such defensive theory. Article 69, P. C.; Pizana v. State, 81 Tex. Cr. R. 81, 193 S. W. 671.
There are other defensive issues which might be raised when the law of principals is charged, but the above satisfactorily illustrates the point that such matters need be submitted only when raised by the evidence and the law of principals is charged offensively for the state. The court, however, in this case authorized a conviction only if appellant was the actual offender; that is, that he actually possessed unlawfully, for the purpose of sale, intoxicating liquors. There is no testimony that raised any of the defensive matters mentioned above. The court did not authorize a conviction upon any theory that would justify the submission of any of these defensive matters. We do not think the evidence raised any theory of his guilt as a principal under articles 65 to 69 of the Penal Code. Assuredly it would not have helped appellant any for the court to have authorized his conviction upon these additional theories.
There being no evidence which in our opinion justified the application of the law of principals to the facts of this case, we overrule appellant's contention in this respect. Moreover, under the peculiar facts of this record, we do not believe that the statement of the court of the law of principals as contained in article 65 of the Penal Code as an abstract proposition of law was, if error, calculated to injure the rights of appellant. Under article 666, C. C. P., this court is inhibited from reversing for any error in the charge, unless we can say that same "was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial." The appellant introduced no testimony. The facts are undisputed. If Smith is to be believed, appellant was guilty because of his own acts. He directed in part the movements of the car. He engaged with Smith and participated with him in every unlawful act. They were engaged upon a joint enterprise, and there can be no difference in their guilt. The possession was the possession of both of them, and every unlawful act was the act of both jointly. It was not necessary for the court to refer to article 65 in any manner, but such reference, we think, could not have injured the appellant.
Finding no errors in the record, the judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.
On Motion for Rehearing.
In the motion for rehearing and argument of counsel it is earnestly insisted that reversible error was committed in embracing in the charge the abstract statement that "all persons are principals who are guilty of acting together in the commission of an offense," insisting that the charge is misleading in the absence of an additional instruction applying the law of principals to the facts of the case. If it were upon the law of principals that the state relied for a conviction, the soundness of ...
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