Appellant was convicted of cattle theft under indictment charging him as a principal. *Page 215
The case is one purely of circumstantial evidence. There were no eyewitnesses either to the taking of the animal or to the act of its being slaughtered. The facts in a general way show that appellant owned two ranches some miles apart. On Sunday about noon or little later, it was discovered within about half a mile or little farther of defendant's residence a cow had been butchered. The alleged owner claimed the animal. The facts further show that wagon tracks were seen to go from appellant's residence, possibly from beyond his residence, in passing it, to where the animal was slaughtered. From the point where the animal was killed the wagon tracks went inside appellant's inclosure — a one hundred-acre field — to a point where it was found the head of the animal had been buried. From this point the wagon tracks returned to the road, which was followed by the tracks to and beyond appellant's residence. Another fact relied upon by the State was that on Monday evening appellant was found in possession of a quarter of the beef or less, a little over one-half of a quarter of beef. This he carried to a place where there was a social gathering at which he was playing for the dancers. This seems to have been a gathering of Mexican people on a ranch some miles away from appellant's home. This was all the beef appellant was shown to have had. If this came from the cow alleged to have been stolen, it was all that was discovered. The remainder of the beef was not discovered. Appellant stated at the time he was found with the beef that he bought it from Mexicans, whose names were given. These Mexicans were shown to have been in the community and fled the country, going to Mexico. Appellant introduced evidence of himself and his son which clearly proved an alibi. Under this evidence appellant worked for Mr. Casey at his ranch some ten or twelve miles distant from his, appellant's home, on Friday evening until night, when late in the evening he returned home, reaching there something like 9:30 at night. Early the next morning he and his son hitched up a team of mules to appellant's buggy and drove to the village of Victoria, some miles away. From this point he went to another little railroad station, spending Saturday night at his other ranch a half mile distant. He accounts for himself on Sunday and Sunday night, returning to his home ranch on Monday morning. From there he went to the place where he was found with fresh beef. Going from his home to the place where the dance was he, some time Monday evening, claims to have bought the beef in his possession. So we have two propositions in this case: First, that it was one purely of circumstantial evidence, and, second, evidence of an alibi.
There was some evidence that at the time of the discovery of the head where it was buried, the beef had been killed some twelve to twenty-four hours prior to Sunday evening, which would possibly show the animal was slaughtered on Saturday. But it will be observed in this connection that the beef's head was buried, and, therefore, it would not have dried out as if exposed to the atmosphere. This makes the time of the slaughter of the animal very doubtful. But as before stated, *Page 216 these are circumstances, and the case is one of circumstantial evidence. Appellant's alibi covers the entire time from Friday to Monday, and it is an unquestioned fact that the animal was killed not later than Saturday some time and possibly earlier.
1. The appellant proposed to continue the case to get the evidence of Mr. Casey and a witness named Gross. These witnesses would have materially aided his defense. But it is not the purpose here to discuss the continuance, because the matter may not arise upon another trial.
2. Appellant offered to prove by the State's witnesses, some of whom were officers, that they had information and were in pursuit of two Mexicans, the same parties from whom appellant claimed to have purchased the beef, and this with a view of arresting them for the theft of this animal. They came upon the two Mexicans, who drew their guns upon the officers and succeeded in making their escape, the evidence showing they had fled, and the officer had since been unable to find them. Upon another trial this evidence should go before the jury, and in the light of the other testimony offered in behalf of appellant and was excluded by the court. Defendant while testifying in his own behalf desired to testify, in addition to the fact that he purchased the beef from one Francisco Pallan, to a description of the said Francisco Pallan, — his personal appearance, etc., and then states he could have proven by the officer that the description thus given of Pallan corresponded with the description of one of the Mexicans he sought to arrest near the point where the cow was killed. The officer did not know the name of the Mexican he sought to arrest, but appellant sought to elicit from him a description of the Mexican, and this he would testify was a proper and correct description of the man from whom he stated he purchased the beef. This would place the Mexican in such position where he could have committed the offense, and as this was a case depending entirely upon circumstantial evidence, such testimony should have been admitted.
The court charged the jury 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 criterion for determining who are principals is, 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." The court further applying the law to the case gave this charge: "If, therefore, you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Lojina Silvas, acted with another or others in the commission of the offense charged in the indictment, and that the act was done in pursuance of a common intent and in pursuance of a *Page 217 previously formed design of the defendant and another or others, in which the minds of all united and concurred, including the mind of the defendant, then the defendant would be guilty of the theft, as hereinbefore charged, whether or not in point of fact he was actually, bodily present on the ground when the offense was actually committed." Appellant reserved a bill of exceptions to the giving of these two paragraphs of the charge, the objections stated in the bill being: "Upon the ground that there was no evidence which authorized the giving of said paragraphs; and that said paragraphs of said charge were calculated to and would confuse and mislead the jury to the defendant's prejudice; in that there was no evidence whatever in the record that any person other than the defendant aided defendant in killing said cow, if defendant did kill same, and no evidence whatever that showed or tended to show whether the defendant was present at the killing of said cow, or was not present at the time of killing of same, but was keeping watch or aiding in the killing of same, or doing any act in furtherance of a common design between defendant and others to kill said cow."
While the first objections stated are perhaps too general, yet the latter objections are certainly specific enough to call the attention of the court to the fact that he authorized the conviction of appellant as a principal upon a state of facts which in law would only constitute him an accomplice, and it has always been held that if one was on trial as a principal, and the facts showed that, if guilty at all, he was guilty of the offense of accomplice to the crime, he could not be convicted under the indictment charging him with being a principal in the commission of the offense. If a person is not present at the commission of the offense, to constitute him a principal, he must at the time be doing some act in furtherance of the common design, and this bill specifically points out as objections to this portion of the charge, "That there was no evidence that he was present at the time of the killing of the cow, and no evidence that he was keeping watch or aiding in the killing, or doing any act in furtherance of a common design between defendant and others, to kill the cow." We think these objections to the charge were specific enough to call the court's attention to the error. It may be further stated that appellant moved to continue the case on account of the absence of W.D. Casey, whom he says would testify: "That on the day that the defendant is alleged to have stolen the said head of cattle, the said witness was coming from his home in Jeff Davis County, traveling in an eastern direction towards Cowan's ranch, in Reeves County, Texas; that when the said witness reached a point something like two miles to the south or southwest of the defendant's home, he saw a Mexican sitting on a point of a mountain or foothill, acting in a manner as if he was keeping watch for others; that said Mexican was not the defendant, but that the said Mexican had appeared to be so keeping watch was a strange Mexican and unknown to the said W.D. Casey; that the said W.D. Casey knows this defendant well and is well acquainted with this defendant's general appearance and would know this defendant *Page 218 anywhere he would see him; that this happened on the same day that the said cow, or head of cattle, is alleged to have been stolen, and near the same place where a cow, or beef, was killed and butchered by some unknown parties other than the defendant; that the said Mexican that was seen by the witness W.D. Casey, and who was keeping watch while his companions were stealing said cow and butchering the same, suited the description of a certain Mexican whose name is unknown to defendant, who was accused of stealing said cow and who a few days later, together with one of his companions, as the evidence of other witnesses will show, was overtaken by two of the officers of the county some miles to the south or southwest of the same place and in Reeves County, Texas, or near the line of Reeves County and Jeff Davis County, and said officers attempted to arrest the two said Mexicans for the offense of stealing said cow and said Mexicans drew firearms on the said officers and resisted arrest and threatened to kill said officers, and probably would have killed said officers, had the said officers made further attempt to arrest them, and which said Mexicans after successfully resisting said arrest made their escape into the Davis mountains and then fled the country, going in the direction of the Rio Grande river." Appellant also states he expects to prove by said Casey that he at that time knew the whereabouts of Silvas at that time. We are inclined to think he was entitled to have this witness present, and his testimony, as well as that officer and appellant above stated was all admissible in support of his contention that another stole the cow, and he bought the beef found in his possession.
But the error in the above two paragraphs of the charge is emphasized by the failure of the court to submit appellant's contention, that he purchased the beef from Francisco Pallan. Nowhere in the charge is this issue submitted. If the facts had clearly shown that appellant was on the ground at the time of the theft and aided in it as a principal, the charge might not have been reversible error. The decisions clearly lay down this proposition. The charge would not be reversible error if the evidence showed without controversy that the defendant was present when the offense was committed. Branch's Crim. Law, sec. 682; Wright v. State, 40 Tex.Crim. Rep.; Henry v. State, 54 S.W. Rep., 592; Bollen v. State, 48 Tex.Crim. Rep.; Glascow v. State, 50 Tex.Crim. Rep.. But the charge above given has been held to be reversible error in every felony case where the defensive theory was an alibi, or where the inculpatory evidence is circumstantial, or consists in proof of acts occurring either before or after the commission of the offense, or both, or where there is any evidence that defendant, if guilty at all, would only be guilty as an accomplice or accessory, or both. Branch's Crim. Law, sec. 682; Dawson v. State,38 Tex. Crim. 50; Yates v. State, 42 S.W. Rep., 296; Bell v. State, 39 Tex.Crim. Rep.; Joy v. State, 41 Tex.Crim. Rep.; Criner v. State, 41 Tex.Crim. Rep.; Walton v. State,41 Tex. Crim. 454; Steed v. State, 43 Tex.Crim. Rep.; McAlister v. State, *Page 219 45 Tex. Crim. 258; McDonald v. State, 46 Tex.Crim. Rep.; Barnett v. State, 46 Tex.Crim. Rep.; Eddens v. State,47 Tex. Crim. 529; McCulloh v. State, 44 Tex. Crim. 152, 71 S.W. Rep., 278; Armstead v. State, 48 Tex. Crim. 304; Holmes v. State, 49 Tex.Crim. Rep.; Fruger v. State, 50 Tex.Crim. Rep.; Davis v. State, 55 Tex. Crim. 495; O'Quinn v. State, 55 Tex.Crim. Rep.; Jones v. State, 57 Tex.Crim. Rep.; Clark v. State, 60 Tex. Crim. 173, 131 S.W. Rep., 556.
Again, it is laid down that if the defendant is indicted as a principal only, and there is evidence that he was not present when the offense was committed, he is entitled to have the jury affirmatively instructed that they can not convict on proof that he was either an accomplice or accessory, or both, or receiver of stolen property. Branch's Crim. Law, sec. 683; Golden v. State, 18 Texas Crim. App., 637; Steed v. State, 43 Tex. Crim. 567; Jones v. State, 57 Tex.Crim. Rep.; Black v. State,38 Tex. Crim. 58; Mitchell v. State, 44 Tex. Crim. 228; Mazureczk v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 136; Davis v. State, 55 Tex.Crim. Rep..
Again it is laid down when the charge authorizes a conviction on the theory that the accused was a principal, the converse should be given, that is, if another did in fact commit the offense and the defendant did not aid or encourage he would not be a principal. Jackson v. State, 20 Texas Crim. App., 190; McMahon v. State, 46 Tex.Crim. Rep.; Goodwin v. State,58 Tex. Crim. 496. This line of thought might be pursued indefinitely. The charge quoted is not the law under the facts. The converse of the proposition, if appellant was not present and did not aid in the taking, etc., of the animal, he should be acquitted, was not given. In other words, the court authorized the jury and instructed them to convict appellant as a principal whether he was present at the time or engaged in the theft or not, provided that the animal was taken in pursuance of a common design. This is not the law under the facts of this case. The Legislature has seen proper to draw a distinct affirmative line of demarkation between facts which constitute a principal, and those which constitute an accomplice, and those that constitute an accessory, and those that constitute a receiver of stolen property. Appellant denied emphatically his presence at the time of the theft, and any participancy in it, or even knowledge of it. He introduced evidence of an alibi. The State relied exclusively upon the circumstances detailed. The State did not even undertake to show that the beef found in appellant's possession came from the animal alleged to have been stolen. Applying the law to the case the jury should have been plainly told that if he was not a principal and did not participate in the original taking, under the law in regard to principals he could not be convicted under this indictment as an accomplice, and the fact that he may have received, if in fact he did receive, part of the stolen animal, for which he says he paid money, this still would not constitute him a principal. If when he bought the beef it was stolen and he knew it was stolen, he *Page 220 might probably be convicted as receiver of that amount of stolen property. If he advised and agreed with the parties in advance to kill the beef, which seems to have been the theory of the State, and was not present, and at the time of the taking and killing was doing no act in furtherance of the common design, he might be guilty as an accomplice, but not as a principal.
Again, it is shown in another bill that while appellant was testifying, and had testified he purchased the beef from Pallan, the court took charge of the witness and examined him in regard to Pallan, his purchase, etc., and in a way that would lead the jury to believe that the court had but little, if any, faith in appellant's testimony of purchase, and then in his charge wholly ignored that defense. It is true that the record discloses that after examining the witness at some length, the court verbally instructed the jury: "Gentlemen of the jury, the questions the court asked of the defendant were for the court's information, and you need not consider the questions asked by the court, and the answers thereto. You may consider it in evidence if it has been or might be brought out by counsel for either side, but the questions asked by the court, and answers obtained, were for the court's information." If the court desired to examine this witness for his own information, the jury should have been retired while he was so doing. It was hardly permissible for the court to cross-examine the witness on the vital issue in the case, and by his questions convey the impression that the court had but little faith in the defensive theory of appellant, and then after doing so seek to cure the error in the manner he did. Injurious errors deliberately committed can not be cured in this manner. We deem it unnecessary to go into a further discussion of these matters.
The judgment is reversed and the cause is remanded.
Reversed and remanded.