Holmes v. State

• Decision Date: 23 April 1913
• Citation: 156 S.W. 1172
• Parties: HOLMES v. STATE.
• Court: Texas Court of Criminal Appeals

156 S.W. 1172

HOLMES v. STATE.

Court of Criminal Appeals of Texas.

April 23, 1913.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Wood County; R. W. Simpson, Judge.

Kit Holmes was convicted of burglary, and he appeals. Affirmed.

W. N. Jones, of Mineola, and M. D. Carlock, of Winnsboro, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted charged with burglary. When tried, he was convicted, and his punishment assessed at three years' confinement in the penitentiary.

In this record there are some 35 bills of exception; and, while we may not treat of each of them at length, yet we have read them, and acted on such as we thought necessary to a proper disposition of the case.

It appears that appellant was running a livery stable in the town of Alba. The Consumers' Lignite Company was operating a mine near that town, and had a commissary, warehouse, etc. In the warehouse they kept feed for their teams, buying it in car load lots. According to the state's evidence, appellant approached Jeems Russell, a negro, employed by the coal company, to do its feeding, and asked him in regard to where the company kept its supply of feed, and, learning, he requested the negro when a fresh car load was received to let him know, and requested him to leave the door open. This the negro agreed to do, and went at once and reported the conversation to the manager of the coal company, Mr. Hodges, and an employé, Mr. Shoemaker. Messrs. Hodges and Shoemaker told the negro to report to appellant when the car was received, and let them know what he said. Jeems Russell did as they instructed him, and when the car of feed was received, and he was approached by appellant, he informed him that the car load of feed had been received, when appellant again instructed him to leave the door unlocked, that he would come down that night. The negro reported this conversation to his employers, who then reported the matter to the officers. Appellant insists that this state of facts makes Messrs. Hodges and Shoemaker and the negro, Jeems Russell, all accomplices to the crime, if a crime was committed, and asked a number of charges presenting this theory of the case, all of which the court refused. Mr. Wharton in his work on Criminal Evidence, § 440, says: "An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of a crime. The co-operation must be real—not apparent. The co-operation must be active. Mere knowledge that a crime is to be committed is not generally sufficient to make the party an accomplice. * * * But there are certain relations recognized by law in which the voluntary co-operation of a person with the accused does not render such person an accomplice. Thus those who co-operate with a view to aid justice by detecting a crime; nor a detective who joins a criminal organization for the purpose of exposing it, even though, to aid such exposure, he unites in and apparently approves its counsels; nor a disguised emissary who by purporting to be a friend of the parties suspected seeks to draw from them the inculpatory information." In 12 Cyc. p. 1191, it is said, to render one guilty as an accomplice, he must have participated in or instigated the crime; he must have had the requisite criminal intent. In 1 American and English Ency. of Law, p. 390, the rule is said to be: "The test in general to determine whether a witness is an accomplice is the inquiry: Could the witness himself have been indicted for the offense either as principal, accomplice, or as accessory? If he could not be so indicted, he is not an accomplice. * * * Criminal intent is a necessary ingredient of crime, and is essential to render one an accomplice. It follows that, where this element is absent, one is not an accomplice, and as an illustration states that a person feigning to be a confederate in order to discover and bring a criminal to justice is not an accomplice in crime with them." In all these works many authorities are cited, including a number of opinions rendered by this court. Recently this court said in the case of Bush v. State, 151 S. W. 556: "There is a line of cases which holds that where an officer or other parties understand or are led to believe that a violation of the law is in contemplation, and takes steps to detect that crime, or get evidence by which the guilty parties may be punished, he would not be an accomplice, but in such cases he is not an original party to the bringing about the crime, and is not guilty of originating or initiating it. In that character of case his connection with it is after the inception of the crime and after it has been determined upon, and he only then gets into it as a detective or for the purpose of arresting the party and bringing him to punishment." This has always been the rule in this court.

It has been contended that the opinion of this court in the case of Dever v. State, 37 Tex. Cr. R. 396, 30 S. W. 1071, announces a somewhat different rule, but a reading of that case will convince one otherwise. In that case the person held to be an accomplice, it is true, reported the matter to the officers, and kept them advised, and had no intention of personally engaging in the robbery, but it was further shown that, when he reported the matter to the officers, he and they conferred and decided on the plans, etc., which was reported to the Devers, not solely for the purpose of detecting a criminal, but also for the purpose of obtaining a reward offered by the railroad for the detection of train robbers, which reward they agreed to divide equally among themselves. And the testimony in the case would lead one to conclude that the witness induced the Devers to agree to the commission of the offense in order to obtain the reward, and not for the purpose of detecting a crime already fully decided on by the Devers.

In this case no one sought to induce appellant to commit the burglary. The design was formed by him alone, and he approached the negro, Jeems Russell, to get him to inform him as to amount of feed on hand, and when a large lot would be received, and to induce the negro to leave the door open that the theft might the more easily be accomplished. The negro did not originate the design; did no act in furtherance of the commission of the offense; did not leave the door open as requested and was not requested to, nor did he do any other act in aid of its commission. The negro by his whole acts and conduct shows he had no criminal intent; no idea of participating in the crime even remotely, but when approached by appellant promptly reported the matter to his employer—the person whose commissary appellant by his remarks shows he contemplated visiting for the purpose of stealing therefrom. The negro reported the matter to his employer, so that, if appellant did so, he might be detected. Those in control of the commissary told the negro, if approached again by appellant, to let him know when the feed arrived, and report to them what he said. This the negro did, and the detection of appellant was accomplished by this means. However, the court submitted to the jury the determination of the question of whether or not the negro, Jeems Russell, was an accomplice in an appropriate charge, and certainly this is all that should have been done. The evidence certainly does not as a matter of law make him an accomplice, but, on the contrary, seems to prove beyond a reasonable doubt that he was not an accomplice to the crime.

As to the witnesses Hodges and Shoemaker, there is no testimony suggesting that they were accomplices, and the court did not err in refusing to submit that issue to the...