Schackey v. State

• Decision Date: 22 November 1899
• Citation: 53 S.W. 877
• Parties: SCHACKEY v. STATE.
• Court: Texas Court of Criminal Appeals

53 S.W. 877

SCHACKEY v. STATE.

Court of Criminal Appeals of Texas.

November 22, 1899.

Appeal from district court, Washington county; Ed. R. Sinks, Judge.

Fred Schackey was convicted of murder, and he appeals. Affirmed.

Seancy & Garrett and B. F. Teague, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of the murder of Henry Kramer, and his punishment assessed at seven years' confinement in the penitentiary.

His first contention is that the witness Hadley was a principal; and, second, an accessory. She alone testified directly to appellant's connection with the homicide. The killing occurred about 11 o'clock at night, on a railroad track, near the long bridge at Brenham. On the night of and prior to the homicide, this witness, Reinhardt Fisher, Will Fletcher, appellant, and others were at the Klondike Saloon. Appellant and deceased, Kramer, went out of the saloon together. Witness and Fisher left shortly afterwards, in company with each other. As she and Fisher reached the street, appellant called Fisher to one side, and had a conversation with him. Fisher then rejoined witness, and went with her to the yard gate at her residence, where they stood for a quarter to a half hour, engaged in conversation, when she noticed appellant and deceased coming down the railroad track. She heard appellant whistle. Fisher responded, and went to where appellant and deceased were. She followed to see what the parties were going to do. She saw them take hold of deceased, and one of them inflicted a blow on his head with a club, which caused him to fall. At this juncture a freight train approached, and appellant and Fisher ran off; one of them remarking, "There now, you have killed that man." The body of deceased was either left or thrown upon the railroad track, and the train ran over it. When the train passed, the parties returned to the body, and one of them said. "Let's search his pockets." This witness further says: "I know it was Schackey, because I recognized his voice. I know his whistle. I ran up to the foot of the arch, about thirty feet from them." It was from this point she saw the infliction of the blow. This witness was the mistress of Fisher. This is, in substance, her testimony in regard to the homicide. On the next day Fisher approached this witness, and by persuasion and threats induced her to agree not to testify against him as to this transaction. He notified her the officers were in pursuit of her as a witness. She agreed to testify that Fisher had nothing to do with the homicide, and at Fisher's instigation she agreed also to place the responsibility of the killing upon appellant. On the inquest she testified in accordance with this agreement. She limited the responsibility of the homicide to appellant. On the inquest she makes him alone responsible, but on the final trial she implicates both Fisher and appellant. Now, under this evidence, was this witness a principal in the murder, and is she an accessory to Schackey? Appellant contends that, if she was not a principal then she is an accessory, and that her testimony would need corroboration, and the court should have so instructed the jury. We do not understand that this testimony makes her a principal. Hers is the only evidence that tends to connect her with the crime in any way, and, if we concede everything she states to be true in regard to her knowledge of the offense and her proximity at the time of its commission, there is no evidence which shows she acted with the parties, or advised or agreed to the commission of the offense. Her relations to her paramour did not make her a principal. The fact that she was at her gate, talking with her lover, when appellant came down the railroad, does not indicate a conspiracy, or a criminal presence, or an acting together with either Fisher or Schackey, so far as the homicide is concerned. Nor does the fact that she followed Fisher out of curiosity to see what the parties intended to do show a guilty participancy. The evidence does not indicate she had any intimation or knowledge, or even suspicion, that Fisher and appellant intended to kill Kramer, until she saw the enactment of the tragedy. The mere fact that she knew the offense had been committed, and remained silent, will not make her a principal; nor will the further fact that the following day she concealed her knowledge of Fisher's connection with it make her a principal. Tullis v. State, 41 Tex. 598; Ring v. State, 42 Tex. 282; Burrell v. State, 18 Tex. 713; Noftsinger v. State, 7 Tex. App. 302; Rucker v. State, Id. 550; Golden v. State, 18 Tex. App. 637; Smith v. State, 23 Tex. App. 358, 5 S. W. 219; Smith v. State, 28 Tex. App. 309, 12 S. W. 1104; Floyd v. State, 29 Tex. App. 349, 16 S. W. 188; Walker v. State, 29 Tex. App. 621, 16 S. W. 548; Alford v. State, 31 Tex. Cr. R. 299, 20 S. W. 553. It is not necessary to cite further authorities on this question.

Now, as to the question of accessory, our statute provides that: "An accessory is one, who, knowing that an offense has been committed, conceals the offender, or gives him any other aid, in order that he may evade an arrest or trial, or the execution of his sentence. But no person who aids an offender in making or preparing his defense at law, or procures him to be bailed, though he afterwards escapes, shall be considered an accessory." Pen. Code, art. 86. In order to constitute a party an accessory, his act must bring him within the purview of this statute. Now, if Hadley was an accessory, it was by reason of the fact that she agreed with Fisher to testify that he was not present, and had no connection with the killing of Kramer. She never at any time testified to facts exonerating Schackey, but, on the contrary, on the inquest as well as on the final trial she directly inculpated him. If it be conceded that her acts would have made her an accessory to Fisher, still the testimony shows positively that she was not aiding Schackey in any manner, either to conceal him, or render him any other assistance. It is not necessary in this opinion to discuss the question as to whether she would have been an accessory to Fisher, as he was not on trial. In Chitister's Case, 33 Tex. Cr. R. 635, 28 S. W. 683, it was held: "In order to render the witness an accessory, he must have concealed the...