Presiding Judge Hawkins having entered his dissent to the disposition of this case, I think it permissible to write my views in which I concur in Judge Beauchamp's opinion herein.
This is not an ordinary case of theft by violence and without the consent of the injured person, but it is theft with consent of such person, but a consent that was obtained by means of a false pretext. This conspiracy began some ten days or two weeks prior to the time the money was actually gotten from Mr. Goolsbee. About two weeks prior to such time, we gather *Page 73 from the testimony, appellant Holt called on Mr. Goolsbee at his home in Warren, Tyler County, Texas, and gave the name of Franklin, which name was false, and said he wanted to lease some land for oil exploration purposes; that he was representing a man named Blackwell; that Mr. Blackwell was old, and was the same person for whom the town of Blackwell, Oklahoma, was named, all of which statements were false. That he would try and get Mr. Blackwell up to see Goolsbee. In about three days Holt (as Franklin) returned on a Sunday and merely paid a social call, Holt not doing business on Sunday. Holt came again about three days later and said he would try to get his mythical, so far as the record shows, employer to come to see Mr. Goolsbee, but Blackwell never came. Again, on the fourth trip appellant brought one Ramey with him, who was introduced by the name of Shelton, and Franklin (Holt) and Shelton (Ramey) then agreed with Goolsbee on the oil lease of about 2,500 acres of land in Trinity County at ten dollars per acre, and tried to get Goolsbee to go to Beaumont to see the mythical Blackwell; upon Goolsbee's refusal they agreed to try to get said Blackwell to come to Warren to see Goolsbee. Again these two persons returned to see Goolsbee, and told him that Mr. Blackwell said that they, Holt and Ramsey, — still known as Franklin and Shelton, — had agreed to pay too much for the oil lease, and wanted a split of the difference. Nothing came of this request. Then came a sixth trip in order to obtain the deeds of Goolsbee to the Trinity County land, and the obtaining of knowledge that title to a portion of the land was in Mrs. Goolsbee's name, again an effort was made to get the Goolsbees to come to Beaumont, as the said Blackwell wanted to meet Mrs. Goolsbee, and finally Mr. Goolsbee consented to come to Beaumont to meet Blackwell and negotiate relative to the oil lease, and these persons then told Goolsbee that they would use Mr. Blackwell's car and come to Warren and take the Goolsbees to Beaumont the next day. Ramey (Shelton) did come after them the next day and they came to Beaumont with him, and stopped across the street from the Hotel Beaumont. Mr. Goolsbee got out of the car and entered the hotel, and there found Holt (Franklin) and was told by Holt that Mr. Blackwell was in an oil conference at that time, and would be out in about forty or fifty minutes; that he was a busy man, many people wanted to see him, and he said "if you will go out there and wait in Ramey's (Shelton's) car, when Mr. Blackwell comes in I will catch him first thing when he comes, and bring him out to the car, and we will close our *Page 74 trade; I will let him meet you people and close the trade out in the car; and we went back and got in the car, and Bob Holt, I don't know whether he came to the car or not, I think he did, but he went outside the lobby I know." After the parties, the Goolsbees and Ramey (Shelton) got in the car to wait for Blackwell, the old pigeon-dropping game was pulled on the unsuspecting Goolsbees, and two new conspirators came into view in the common design, Harris and Thavanow. After the supposed winning of $77,500.00 on the non-existent stock exchange in the hotel, and a visit of Harris to the car, the same car in which Holt had placed the Goolsbees, and where he was going to bring this same Blackwell to close the oil deal, Harris exhibited a large roll of money which he, as the stock exchange man, was going to pay to Ramey, Thavanow and the Goolsbees; he raised a question as to who should receipt for this large amount, and the signatures not being satisfactory, he finally agreed that if the parties would exhibit to him $30,000.00 in cash, he would then deliver this money to them. After it being shown that Ramey and Thavanow could only raise $10,000.00, these two gentlemen asked Mr. Goolsbee if he could not raise some funds, and eventually Goolsbee agreed to raise $20,000.00. In the meantime the stock exchange man had gone back into the hotel, ostensibly to his exchange, which was not there. Just about this time "Bob Holt, the defendant, came by the car and told us that Blackwell had come in, and Blackwell still was busy, but he says he will buy the land, lease the land at your price, and I believe that was on Friday, and he is busy and we will lease the land, and he said it will be O.K., and not later than Tuesday we will put the money in the bank and get the title fixed up." Soon after that Mr. and Mrs. Goolsbee, accompanied by Ramey and Thavanow, went to two banks and drew out the $20,000, the numbers of the larger bills being kept by the bank; they saw no more of Holt, but visited a room in the hotel, gave their money to Harris, who gave them in return some kind of order, but on account of Harris' "stock exchange" being closed and the vault locked up, the parties were to return the next day and get their $30,000.00 as well as their $77,500.00. Of course on the Goolsbee's return the next day no conspirators appeared, and upon opening the envelope, which had been left with the hotel clerk under lock and the key given to Mrs. Goolsbee, nothing save blank paper was found in the envelope.
It is our impression that appellant was the master mind in the whole transaction, and that from his first visit to this *Page 75 small town storekeeper until the money was taken from Mr. Goolsbee with the successful fruition of his two weeks labor he was acting with and at all times furthering the common design and purpose of this elaborately laid plot.
The testimony shows two previous convictions for similar crimes, in one of which he was charged with obtaining in Arkansas $55,000.00, and in another he was charged and convicted of obtaining $28,000.00 in the State of Tennessee. Evidently he was experienced in such matters.
It will be observed that this is not an ordinary theft, where property is taken without the knowledge and consent of the owner. This is a theft where property is obtained with the consent of the owner, but the consent is gained by means of a false pretext. It might be summed up and said that practically every representation made to Goolsbee by Holt was false, but had its evident purpose and motive to get Goolsbee to come to Beaumont and sit in the car where Holt directed him so this scheme could be perpetrated upon him, and his consent could be obtained to the possession of this large sum of money.
I have thus set forth the salient facts in order to show that the jury was justified in finding that there was a concerted scheme and design between appellant and his confederates to obtain the presence of Goolsbee at Beaumont, and that the portion of such common design upon the part of Holt was accomplished by him while his companions were carrying out their portion of such scheme. Holt was in touch with them, still holding his victims in the net that he and his confederates had spread for them.
The dissenting opinion quotes the doctrine that "the mere fact that a conspiracy is shown does not make all parties thereto principals to the crime committed as a result of and as contemplated by the conspiracy," and quotes Branch's P. C., Sec. 700. It fails to quote a further paragraph of such section, which says:
"To constitute a person a principal in a felony 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."
The common design in this case impresses me as being the obtaining of money by a false pretext, not by violence, and at *Page 76 the time of its obtainment, I think the master mind was not only near at hand but actually present just at or about the time the consent was given, and assisting in getting such consent by a false statement that on the following Tuesday he was going to pay the victim $25,000.00 for an oil lease on some Trinity County lands. I think it is easily discoverable from the facts herein presented that Holt, the master mind, was playing his part in the common design, not only from his acts prior to the receipt of the money, but also after same was received.
If there existed a conspiracy to obtain Mr. Goolsbee's money unlawfully, then any person who entered into such conspiracy prior to its commission and up to the time of the division of the spoils is guilty of all acts of any of the conspirators done in furtherance of the common design at any time until the division of the spoils obtained therefrom, and it is worthy of note that a portion of the marked bills given to Harris by Goolsbee was found in appellant's car, concealed on his wife's body. See Branch's P. C., Sec. 693, p. 352, and Sec. 695, p. 354, 3rd paragraph.
I do not think that the statement that the "time of the crime being in two counties is startling. Nor do I think any certain degree of proximity is demanded of one ere he can become a principal in a crime. As early as the 7 Tex. App. 361[7 Tex. Crim. 361], Scales v. State, it was held that Mr. Scales, who lived in Clay County, confederated and agreed with two conspirators that they should go over into Wise County and steal some horses and bring them to Clay County, and all three confederates would take them to the Panhandle and sell them. At the time of the theft Scales was in Clay County. The trial court did not charge on accomplishship, but did charge on principals, and Scales was convicted as such, and this court held him to be such, although he was not in the county where the horses were stolen, but merely found in their possession in the Panhandle.
I think that in the case of Middleton v. State, 86 Tex. Crim. 307,217 S.W. 1046, this matter has been fully and correctly discussed, which case has often been quoted, the burden of such discussion being relative to one's actual physical presence at the scene of the offense as the distinction between accomplice and a principal. Prior to that time and since we think the true doctrine that should be followed is found in Mason v. State,31 Tex. Crim. 311, wherein it is said: *Page 77
"Again, it is well settled that where it is proved that the persons charged by their act pursue the same object or purpose, one performing one part and another some other part of the same, so as to complete it with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object; and under our statute such acting together would make all principal offenders, whether bodily present or not at the place of the offense. And they are all principal offenders when acting and together, as long as any portion of the object of the common design remains incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Smith's case, 21 Texas Ct. App. 108[21 Tex. Crim. 108]; Willey v. The State, 22 Texas Ct. App. 408[22 Tex. Crim. 408]; Miller v. The State, 23 Texas Ct. App. 38[23 Tex. Crim. 38]; Collins v. The State, 24 Texas Ct. App. 141[24 Tex. Crim. 141]; McFadden v. The State, 28 Texas Ct. App. 241[28 Tex. Crim. 241]."
I think Judge Beauchamp's conclusions as to the law in this matter are based on the proper decisions of this court, and are borne out by the facts and common sense, and I therefore concur in the affirmance of this judgment.