Isaacs v. State

• Decision Date: 09 December 1896
• Citation: 38 S.W. 40
• Parties: ISAACS v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W. 40

ISAACS v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1896.

Appeal from district court, Hardeman county; J. M. Standlee, Special Judge.

George Isaacs was convicted of murder in the first degree, and appeals. Affirmed.

Plemmons & Veal, Ownby & Johnson, and Oeland & Littleton, for appellant. Carter & Cowan, H. E. Hoover, G. W. Walters, Dist. Atty., and Mann Trice, for the State.

HURT, P. J.

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

1. The indictment contains three counts. The first count charges appellant as a principal; the second charges Jim Harbolt with the murder as principal, and the appellant as not being present, advising or encouraging Harbolt to commit the murder,—in other words, charges the appellant as an accomplice to Harbolt in the murder; and the third count charges him as an accomplice to the murder of McGee, committed by some person to the grand jurors unknown. There is a general verdict of guilty, without stating upon which count the verdict is based. This is sufficient, and the verdict can be applied to the count sustained by the proof. It appears from the record that appellant, in Kansas City, Mo., purchased a large number of small currency bills, and placed them in five packages. The packages were sealed up, each marked $5,000, and were placed with the agent of the express company at Kansas City, for shipment to Canadian, in Hemphill county, Tex. When the train carrying the money arrived at Canadian, it was dark, and the deceased, McGee, had been requested by the agent to be at the depot (he being informed of the fact that the company had in its possession the money above alluded to). McGee was at the depot, and, as he stepped out of the door of the office, saw a man, and hailed him, and stated he wanted to see him, whereupon the strange man began firing upon him, and at the same time shots were fired from several different directions at McGee. McGee was killed. Isaacs confesses that he purchased the small bills; that he had placed them in five different packages; that he had marked each as if it contained $5,000, and placed them with the express company at Kansas City, to be shipped to Canadian, Tex.; that he entered into the conspiracy and agreement with Jim Stanley, Bill Doolen, and two other parties; that they came to his house in the Indian Territory, and proposed to furnish defendant with money for him to go to Kansas City, and ship the money to Canadian, Tex., indorsing on the packages so shipped a much larger amount than they really contained; that defendant suggested to Stanley that it would be better for him (defendant) to ship some cattle to Kansas City, and get the money that way, and ship it out. It was further agreed that defendant was to ship the money, and Stanley was to rob the train between Higgins and Canadian. Defendant said that he was a poor man, and, having no money, agreed to this; that there were two or three talks between themselves about this matter. Defendant said that he did not know for certain who was at Canadian except Stanley, that Stanley was to get the men to do the robbing; that he (defendant) was to leave with said cattle for Kansas City about the 20th of November. Defendant further stated that he did nearly all of this talking with Stanley, but that Bill Doolen was with them; that, in accordance with this agreement, he shipped the cattle to Kansas City, got the money, went to the express office, got the envelopes, ascertained the rate on money, paid the express charges, amounting to about $30; that he shipped it in five packages to Canadian, and marked each of them $5,000; that he put $100 in each package, making $500 in all; that he got on the same train which carried out this express, and came with it to Canadian; that he expected the train to be robbed between Higgins and Canadian, and after passing Higgins, and getting near Canadian, he felt uneasy, for fear that something had miscarried. The description given by appellant of Jim Stanley, Bill Doolen, and the other two men coincides with the description given by the other witnesses of these parties. At the time of the shooting, appellant was in the hotel, which is situated about 250 or 350 yards from the depot at which the shooting took place. The state's theory of the case is that Stanley, or perhaps Doolen or Harbolt, did the killing, in the attempted perpetration of robbery. It is not necessary for us to decide whether appellant was a principal or an accomplice. It is evident that he was, at least, an accomplice to the murder. We have his confessions to that effect.

Now, to convict under this indictment, proceeding upon the theory that he was an accomplice to the murder, the state must prove that Harbolt or some person with whom appellant conspired to commit the robbery killed the deceased. It is not necessary to prove that the person or persons killing the deceased entered into a conspiracy or agreement with the appellant to rob the express company. If those with whom he conspired employed others to attempt the robbery, appellant is responsible to the same extent as if he had made the agreement with them himself. Having set in motion that which resulted in the death of the deceased, he would be an accomplice to any person, whether instigated by himself directly, or whether instigated by those with whom he had conspired.

Having positive proof that he had entered into the conspiracy to rob the express company, the next question that presents itself is this: Is there positive proof that some person killed McGee (the deceased), in the attempt to rob the express company, who was a co-conspirator with the defendant, or who had been employed by those with whom appellant had conspired. Tulsey Jack confessed to McKenzie that he was present at the homicide. McKenzie testified: "While talking about the death of McGee, Tulsey Jack asked me what I had heard about it. I told him I had heard it two or three different ways, and he said: `Yes; so have I.' They claimed that there were seven or eight of us at Canadian, who robbed the train, but didn't any of them have it right. There was only four of us. Three went up to the depot, and Joe Blake stayed back with the horses. He said that son of a bitch, George Isaacs, tried to swindle them and the railroad company, too; that he promised to ship $5,000, and sent only $500." The real name of Tulsey Jack was Will Blake. If this confession be true, then the state has positive proof that Blake, alias Tulsey Jack, was present when McGee was killed; that he was there for the purpose of robbing the express company of the money deposited with it by appellant at Kansas City for shipment.

The next question arising is: As the appellant, in his confession, does not name Tulsey Jack as one of the conspirators, have we positive proof that Tulsey Jack was a co-conspirator with appellant, or that he was employed by some of those with whom appellant had conspired, to wit, Jim Stanley, Bill Doolen, or others? If there is no positive proof of this fact, then this is a case depending upon circumstantial evidence, because we might concede that there is positive proof that Tulsey Jack...