Kingsbury v. State
| Decision Date | 03 March 1897 |
| Citation | 39 S.W. 365 |
| Parties | KINGSBURY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from district court, McLennan county; Sam R. Scott, Judge.
M. C. Kingsbury was convicted as accessory in the theft of property, and appeals. Reversed.
Herring & Kelley and Prendergast & Evans, for appellant. Mann Trice, for the State.
Appellant was convicted of being an accessory to the commission by others of the offense of theft of property over the value of $50, and given two years in the penitentiary; hence this appeal.
The indictment in this case alleges that Pete Wells, M. L. Mayes, alias Dock Mayes, and Loy McLennan did steal one buggy, of the value of $100, two sets of harness, of the value of $20 each, and one pair of shafts, of the value of $5, the same being the property of A. A. Temple, and then proceeds to charge that the appellant, M. C. Kingsbury, after the commission of the said theft by the parties above named, did unlawfully and willfully conceal and give aid to the said Pete Wells, M. L. Mayes, alias Dock Mayes, and Loy McLennan, in order that they might evade arrest for said offense, against the peace and dignity of the state. A motion to quash the indictment is made upon the ground that the grand jury did not receive testimony in regard to the bill, but acted on the advice of the county attorney, Mr. Taylor. This motion does not allege that Mr. Taylor was present when the grand jury was deliberating upon the accusation against the defendant or voting upon the same. This court has held that the indictment will not be quashed or set aside because the grand jury had no evidence before them authorizing the presentation of the bill, and that this matter of evidence vel non will not be inquired into. An indictment, however, will be set aside if some person was present not authorized so to be when the grand jury were deliberating or voting upon the bill. As above stated, this is not alleged in the motion to quash. The motion was properly overruled.
To sustain this conviction, appellant being charged as an accessory, it was necessary to establish the fact that some of the parties named as the principals to the theft were guilty, and, under our statute, were guilty of the theft of the property, or some of the property, described in the indictment. It appears from the record that Pete Wells had been tried upon an indictment charging him with the theft of the articles mentioned in this indictment, and the jury returned a verdict of guilty, but that the judgment upon said verdict was for burglary and not theft. A motion was made (Wells being properly notified thereof) to correct the judgment so as to correspond with the allegations in the indictment and the verdict of the jury. This was done, and a formal judgment entered declaring Wells guilty of the theft of the property described in this indictment. In this there was no error. See Morris v. State, 30 Tex. App. 96, 16 S. W. 757.
Upon the trial the record in the case against Pete Wells was introduced in evidence. It appears from the record that sentence had never been pronounced against Wells for the theft of the articles charged in this indictment, or in the indictment upon which he was tried. Our statute provides that "the accessory may in like manner be tried and punished before the principal when the latter has escaped; but if the principal is arrested, he shall be first tried, and if acquitted the accessory shall be discharged." Pen. Code 1895, art. 90. The meaning of this article is evident,—that if a principal is under arrest, and has not escaped, he must be tried and convicted for the offense of which the prisoner is charged of being an accessory. The question before us is whether or not Wells has ever been convicted, within the meaning of our statute upon this subject. It is true there was a verdict of the jury and a judgment thereon. Is this a conviction within the meaning of the laws of this state? At common law an accessory could not be tried until after the conviction of the principal, and while it was true that they could both be placed upon trial at the same time, yet the jury were required to convict the principal before they could convict the accessory. Divers statutes have been passed by parliament upon this subject, and the rule has been amended and modified to a very great extent in England; but in this state no act of parliament is law...
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Lewis v. State
...Commonwealth v. Minnich, 250 Pa. 363, 95 A. 565, 567 (1915); State v. Sims, 18 S.C.L. (2 Bailey) 29, 31 (1830); Kingsbury v. State, 37 Tex.Cr.R. 259, 266, 39 S.W. 365 (1897). Contra, Jones v. The People, 20 Hun (N.Y.Sup.Ct.) 545 In State v. Duncan, supra, the defendant was indicted as an ac......
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McKinney v. United States
... ... subjected to a review ... [199 F. 28] ... by the trial court at the instance of the accused. Matters ... affecting the state or integrity of a grand jury as an ... inquiring and accusing instrumentality, such as the number ... and qualifications of its members, are proper ... grand jury may lawfully hear and indict upon incompetent ... evidence alone; and Kingsbury v. State, 37 Tex.Cr.R ... 259, 39 S.W. 365-- in which it has been held that the secrecy ... of proceedings before the grand jury is more sacred ... ...
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