Thomas v. State

• Decision Date: 01 May 1901
• Citation: 62 S.W. 919
• Parties: THOMAS v. STATE.
• Court: Texas Court of Criminal Appeals

62 S.W. 919

THOMAS v. STATE.

Court of Criminal Appeals of Texas.

May 1, 1901.

Appeal from district court, Brazos county; W. G. Taliaferro, Judge.

Henry Thomas was convicted of being an accomplice to a murder, and he appeals. Reversed.

A. G. Board, J. E. Butler, and W. T. Young, for appellant. D. E. Simmons, Acting Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted as an accomplice to the murder of Pomp Trammel,—John Lindley being the principal, —and his punishment assessed at 25 years' confinement in the penitentiary.

The confessions of Lindley, the principal, were admitted in evidence over appellant's objections. In this there was no error. It was necessary, in order to secure the conviction of the accomplice, to prove the guilt of the principal as alleged, and any legitimate fact or circumstance which showed or tended to show the guilt of the principal was admissible in evidence for that purpose; and this is true whether or not Lindley was on trial. The guilt of the accomplice is dependent upon the guilt of the principal,—that is, there can be no accomplice without a principal; and, in proving the guilt of the accomplice, it is necessary to show the guilt of the principal. So the confessions of Lindley were admissible against him as principal, in proving that he actually did the killing. These confessions and statements of Lindley, however, were withdrawn from the consideration of the jury by the court in the charge. If upon another trial the confessions of Lindley should be used, the court should restrict the jury's consideration in regard to Lindley's guilt only, as they are not facts or circumstances to prove appellant's guilt as accomplice, and can only be used against Lindley to show his guilt as principal.

The court did not err in failing to charge the law applicable to circumstantial evidence. The testimony of Lindley is positive to the fact that appellant advised and urged him to do the killing, and furnished him a gun for that purpose, and with said gun he committed the homicide. Under the unbroken line of decisions, this relieves the case from being one of circumstantial evidence.

Exception was reserved to the charge of the court because it submitted the theory of murder in the second degree; the contention being that, it the testimony of the state be true, it was a killing upon express malice, and therefore murder in the first degree. The evidence is very cogent, showing a cold-blooded killing on the part of Lindley; and the evidence against appellant is to the effect that he urged and advised Lindley to do so, and furnished the gun with which Lindley did the killing. This would have justified a verdict for the higher offense. But can defendant complain because he was given the benefit of a charge submitting the inferior degree of murder? Under the decisions of this state, this question must be answered in the negative. When the indictment charges murder, the party may be convicted of any grade of homicide, and the conviction for the lower grade of murder will not be set aside because the evidence shows the higher grade. Baker v. State, 4 Tex. App. 223; Powell v. State, 5 Tex. App. 234. This principle was expressly recognized in ...