Johnson v. State

• Decision Date: 17 December 1947
• Docket Number: No. 23842.,23842.
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 605

206 S.W.2d 605

JOHNSON v. STATE.

No. 23842.

Court of Criminal Appeals of Texas.

December 17, 1947.

Commissioner's Decision.

Appeal from District Court, Wichita County; Temple Shell, Judge.

Robert Dee Johnson and R. A. Hancock were convicted of the theft of property over the value of $50, and they appeal.

Reversed.

Allen, Locke & Kouri and Guy H. McNeely, all of Wichita Falls, for appellant.

Elmer H. Parish, Dist. Atty., and Clyde C. Fillmore and Alan B. Haley, Asst. Dist. Attys., all of Wichita Falls, and Ernest S. Goens, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft of property over the value of $50. The punishment assessed against each of the defendants is confinement in the state penitentiary for a term of two years.

The record shows that on Sunday, the 28th day of April, 1947, the two appellants, Jimmie Joe Tice, and James Robert Higgins met in a cafe at Lawton, Oklahoma, about 11:30 p.m. While there, Higgins suggested that they go to Wichita Falls, Texas, and get some whiskey. Higgins said that he knew where he could get some whiskey and asked the other three if they would help him sell it and then they would divide the proceeds of the sale in four equal parts. Upon their arrival at Wichita Falls, they went to a tourist camp, engaged a cabin, and then Tice and Higgins proceeded to look for a liquor store. They found one near Sheppard Field Road which was owned by V. N. Mills. They broke the lock on the front door, entered the store and took therefrom 20 cases of Sunnybrook whiskey which they loaded into their Ford automobile. When they had loaded the whiskey and were ready to leave, a police car came in sight and they drove away at a very rapid speed. They went to the tourist cabin where appellants assisted them in unloading the whiskey and placed it in a closet of the cabin. After they had completed the storing of the whiskey in the closet, Tice, Higgins and Johnson went up town while Hancock remained at the cabin. Tice, Higgins and Johnson parked their Ford car and engaged a taxi to take the whiskey to Oklahoma. While they were engaged in loading the whiskey into the taxi, the officers appeared and arrested them.

Each appellant made a voluntary confession which was introduced in evidence by the State. However, on the trial of the case the defendants, nor either of them, testified.

Appellants requested the court to instruct the jury on the law of circumstantial evidence which the court declined to do, to which ruling they excepted. We are not in accord with their contention since the rule seems to be that although the only direct evidence against accused comes from an accomplice it does not require a charge on circumstantial evidence. See Mampler v. State, 28 Tex.App. 352, 13 S.W. 144; Williams v. State, Tex.Cr.App., 45 S.W. 494; Rios v. State, 39 Tex.Cr.R. 675, 47 S.W. 987; and Martinez v. State, 61 Tex. Cr.R. 29, 133 S.W. 881.

Appellants urged a number of objections to the court's charge. Their first objection is that the court in his charge failed to give to the jury a correct rule by which to determine the sufficiency of the evidence of an accomplice witness to justify conviction, in this, that the court failed to instruct the jury to exclude the testimony of the accomplice Tice and then determine if there are other facts or circumstances tending to connect accused with the commission of the offense charged. We see no error committed in this respect. Such an instruction would have been on the weight of the evidence.

Appellants also addressed a number of objections to the court's definition of principals. The charge of the court on the subject reads as follows: "All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons the true way for determining who are principals is as follows: Did the parties act together in the commission of the offense? Was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground when the offense was actually committed or not."

This was a correct definition of the law of principals, if applicable to the facts. A charge similar to the foregoing was given in the case of Cook v. State, 14 Tex.App. 96, and in the case of Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046; and was approved by this Court.

Many other objections were addressed to the court's charge which we have reviewed in the light of the objections and reached the conclusion that the charge is not subject to the objections urged thereto. The only real issue in the cases seems to be whether or not appellants are principals, that is, do the facts and circumstances bring them within the legal definition of principals, or from which the jury could reasonably deduce such a conclusion?

Art. 65, P.C.,...