Appellant was convicted of arson, and his punishment assessed at a term of five years in the penitentiary; hence this appeal.
The indictment in this case contains six counts. The court in its charge eliminated all except the third count, and the jury convicted appellant under the third count. Said count charges that appellant "did on the 17th day of October, 1895, unlawfully and willfully set fire to and burn a house there situate," etc. This was a count against appellant as a principal. Other counts treat him as an accomplice. Appellant insists that the evidence in this case shows that, if he was guilty at all, he was not guilty as a principal, but as an accomplice, and he complains of the action of the court in refusing to give certain charges asked by him on that line, and also of the action of the court in refusing to grant him a new trial because there was no evidence to authorize his conviction under said third count. The charge in this case was arson. The burning was shown to have been of a ginhonse situate in Lancaster, Dallas County. The building was fired about 12 or 1 o'clock at night. All the proof shows that at the time said building was fired the defendant, Dawson, was at the hotel where he stopped, some four or five hundred yards from said building. The only witness who testifies as to the manner in which said building was burned was one Saucer, an accomplice. He states, substantially, that one John Thomas set fire to and burned said building; that said Thomas lived at Sherman, and came to Lancaster that night for the purpose of burning said gin. We quote from his testimony as follows: "On the night of October 17th Clark told witness that John Thomas was at the corner of the hotel gallery, and to go down and see him. Witness went down, and there met John Thomas, and walked with him to the middle of a vacant lot; and John Thomas stated that he was ready to burn the gin, and Clark had told him that it must be burned that night, and wanted witness to go with him, and show him the gin and the lay of the land. Witness returned to the room, and asked Clark to go with Thomas, which Clark refused to do. Witness then returned to John Thomas, and went with him to the gin, took him through the gin, upstairs and downstairs, examined the premises and the roads on two sides of the gin, and the best way to get out after the gin should be burned; and John Thomas tied two wires of the fence together, so as to leave an opening so he could go through easily after he had burned the gin. He then went back to the ginhouse and arranged the torch to fire the gin, which was to be done about midnight; and witness left John Thomas sitting in the cellar of the ginhouse, and returned to his room at the hotel, where he found Price in bed, and Clark sitting up in the room. It was then after 11 o'clock at night. Clark asked witness why he did not stay with Thomas, and see that he burned the gin and did *Page 55 everything right. Witness replied that he was not going to do it; if Clark wanted Thomas to have any assistance, he could assist him himself. Clark then stated that he would go and assist Thomas, and was gone twenty or thirty minutes, and came back to the room and remarked, 'She's gone to hell,' pulled off his shoes and his coat, and got in bed; that in a few minutes afterwards Mr. England knocked at the door of their room and called Clark, and said, 'Your gin's on fire;' that they all then got up and dressed (Clark, Price, and himself), and went downstairs and ran towards the gin. The defendant, Dawson, reached the gin from the hotel after we had gotten down there. The defendant, Dawson, did not know who was to burn the gin. Be knew it was to be done, and agreed to it. He was to take no part in the burning of it, but had agreed to the burning, and had advised it. The gin was to be burned by persons furnished by Clark, and Clark provided and made the arrangements with John Thomas to burn it. The defendant was not present with Thomas and myself when we were examining the gin on the night of the fire, and fixing the torch. No one was present except Thomas and myself. Dawson was at the hotel in his room until after the alarm of fire was raised by H.H. England. His part in burning the gin was in agreeing to it and advising it." The other evidence in the case tending in any wise to connect defendant with the offense is evidence showing motive and conspiracy to burn said building. If we look to the statute, from its plain reading it would appear that the acts attributed to the defendant would not constitute him a principal (see Penal Code 1895, arts. 74-78, inclusive), but would constitute him an accomplice (see art. 79). Nor does it appear to us that defendant would be a principal under any construction of these articles by our court. See Cook v. State, 14 Texas Crim. App., 96; Bean v. State, 17 Texas Crim. App., 61. These cases, and especially Bean's case, supra, propose to draw a distinction between a principal and an accomplice. In Bean's case, supra, it is said: "The dividing line between the two is the commencement of the commission of the principal offense. If the parties acted together in the commission of the offense, they are principals. If they agreed to commit the offense together, but did not act together in its commission, the one who actually committed it is the principal, while the other, who was not present at the commission, and who was not in any way aiding in its commission, as by keeping watch, or by securing the safety or concealment of the principal, would be an accomplice. To constitute a principal, the offender must either be present where the crime is committed, or he must do some act during the time when the offense is being committed which connects him with the act of commission in some of the ways named in the statute. Where the acts committed occur prior to the commission of the principal offense, or subsequent thereto, and are independent of and disconnected with the actual commission of the principal offense, and no act is done by the party during the commission of the principal offense in aid thereof, such party is not a principal offender, but is an accomplice or an accessory, according to the facts." This definition *Page 56 or distinction drawn between a principal and an accomplice appears to have been approved in the case of Smith v. State, 21 Texas Crim. App., 107. But there are some expressions in that case which would indicate that if the act is done in pursuance of a previously formed design, in which the defendant participated, and in which his mind united and concurred with the mind of the person actually committing the offense, such person would be guilty, though not actually present at the time, and not then performing some act in aid of the person committing the offense. However, it was held by the court in the Smith case that at the very time of the theft the defendant was then doing an act in connection with and in furtherance of the common design, to wit, the theft of the cattle — the proof showing that Smith had agreed to steal the cattle, and while the others were committing the theft he was waiting to receive them and drive them to market and dispose of them and divide the proceeds; that the conspiracy embraced all these acts. As we understand it, the principal enunciated in that case was the same as in the Cook and Bean cases, supra; that is, to constitute a person a principal, he must at the time the act is being done, if not personally present, be then doing some act in furtherance of the common design. We do not understand any of our decisions to go beyond this. Under this rule it can not possibly be claimed that appellant, at the time Thomas set fire to the building, was then engaged in doing any act in aid of said party. He was not then present; nor was he keeping watch, so as to prevent any interruption of the person engaged in the commission of said offense; nor was he at the time procuring aid, arms, or means of any kind to assist in the commission of the offense while it was being executed; nor was he at the time engaged in securing the safety or concealment of the offender; nor is it pretended that the person who set fire to said building was an innocent agent of appellant. But the proof is simply, so far as he was concerned, that he had agreed with the principal offender to aid him in the commission of said offense, and that he had advised and agreed to its commission, but was not then present. This, under the plain reading of the statute, made him an accomplice; and, being an accomplice, he was not a principal. In our opinion, the court should have submitted to the jury, under the evidence in this case, solely those counts which charged appellant with being an accomplice.
It appears that on the trial of the case the following letter was admitted in evidence against the defendant over his objection:
"KANSAS CITY, MO., 11/24/'95.
"Mr. C.A. Dawson: I wrote you a letter last Wednesday, and gave it to Mr. P. to forward it to you, asking you to please do what you could for us at once. I am here broke. The weather very bad; sleet and snow all over the face of the earth. You can imagine my condition in a strange land, among strangers, without a cent. If you have not sent the bal. to Mr. P., please send it to undersigned at your earliest possible moment. *Page 57 If you have, it is all O. K.; but, by you sending to me direct, I will receive it earlier. Please do not disclose my whereabouts. Will keep you posted as to where to direct your letters. If you have any news, write me. Your friend, "WILL ROBERTS, "Gen. Del., Kansas City, Mo.
"Tear this up as soon as you receive it and write at once.
"W.R. CLARK.
"If you have sent the money to Mr. P., and could spare me the loan of a few dollars for a few days, it would be highly appreciated, and I will return it as soon as I can get straightened out. Will write you a long letter in a few days. Would write more now, but am in a hurry to get this off on the first train. I wrote you the turn things have taken. I have settled up everything concerning your matter, and everything comes to me. "C."
Address on envelope: "Return in 5 days to Will Roberts, Kansas City, Mo. Mr. Daniel Graham, Cameron, Texas. C/o Bob Wight."
Postmark: "Newton Galveston R. P. O. Nov. 25, 1895." Stamped on back on envelope: "Cameron, 25 N. 1895."
Said letter is shown to have been taken from the office at Cameron by one Bob Wight about the middle of November, 1895, after the arrest of the defendant. The defendant never received or saw said letter prior to its being introduced in evidence against him. It was further shown that some time prior thereto, but after the fire, appellant was at Cameron, and told said Wight that he was expecting a letter from one Clark, then in the Indian Territory, in regard to going into business with said Clark, and that he did not want his wife to know anything about it, and requested him to get the letter; that said letter would be addressed to him in the assumed name of Daniel Graham; that said witness Wight did get one letter so addressed, and delivered it to the defendant; that the other letter introduced in evidence was received by said Wright as before stated. In connection with the introduction of said letter, it was proved by one Womack that said letter was in the handwriting of W.R. Clark; that he was acquainted with his handwriting. Appellant insisted that said letter was not admissible against him, because it was the declaration and statement of a co-conspirator made after the consummation of the object and purpose for which the conspiracy was formed, and because said letter was inadmissible, incompetent, and irrelevant, and prejudicial to the defendant, and because it was shown that said letter had never been received by the defendant and had never been read read by him, and that he did not know the contents of said letter until subsequent to his arrest on this charge, and until the same was introduced in evidence against him. Said objections were overruled by the court, and the letter admitted in evidence against him. In our opinion, said letter was clearly inadmissible. For a discussion of this question, see the case of Dawson v. State, ante, p. 9. *Page 58
In regard to the statements made by defendant to White Co. of the condition of the business: Unquestionably, the same were admissible; and it appears that the statements made by Clark and Saucer subsequent to the fire, for the benefit of White Co., handed by them to the defendant, and by him given to White. Co., were admissible, under the circumstances of this case. Furthermore, we believe that the books of Clark Saucer, showing the original entries, but not mere statements therefrom, were admissible in evidence, in connection with the other testimony in the case tending to show a conspiracy on the part of appellant in conjunction with Clark and Saucer and Price to defraud White Co. We do not believe that the to letters sent out by White Co. to parties at Lancaster, and returned to White Co. undelivered, were admissible in evidence for the purpose of showing that said parties to whom said letters were addressed did not live in that neighborhood; but the testimony of witnesses who lived in that community, and were well acquainted, we believe, was admissible to show that the parties whom the original entries showed had sold cotton to defendant for White Co. did not live in said community, said evidence tending to show that they were fictitious persons. It is not necessary to discuss the other assignments of error, as they are concerning matters not likely to occur on another trial, but for the errors pointed out the judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.