In quite an able brief and argument appellant, through his counsel, attacks the conclusion reached in the original opinion, that the trial court did not err in admitting the evidence of other offenses therein described; and in the course of the discussion, reference to many cases in which this court has decided that under the particular facts involved proof of other offenses was not admissible, and in which the principles upon which they are admitted are excluded in the given case, are laid down. Quoting from one of these, Bink v. State, 58 Tex. Crim. 598, 89 S.W. Rep., 1076, we take the following: "While proof of extraneous crimes can be made to establish system or intent, still, before such crimes can be admitted there must be some dispute as to the identity of appellant, or the system, or some controversy as to his intent." In this, as in many cases, the difficulty is not in the ascertainment of the rule, but its application. If, in this case, there was an issue or controversy as to the intent of the appellant, and the other offenses, by disclosing a system of conduct, tending to solve the controversy, they were within the rule admitting such evidence. That appellant assisted in butchering the animal in question at night-time; took part in the disposition of the meat and the hide of the animal are not disputed questions. Whether he actually took the animal or was present at its taking is disputed; the State's testimony showing that he did do it; his testimony denying it. He claimed to have been the employe of Hoffman and to have participated in butchering the animal and disposing of the meat and hide in the course of his employment without knowledge of the theft or intent to participate therein.
The State's testimony pointed to an agreement between Hoffman and appellant to engage in the business of stealing cattle, butchering them at Hoffman's house, selling the hides and the meat and dividing the proceeds. There was evidence that on various occasions appellant had taken part in butchering cattle at Hoffman's house at night-time and had sold the hides and the meat. The State's theory was that the animal in question was stolen pursuant to such a conspiracy and that the acts proved, showing appellant took part in butchering cattle at Hoffman's house at night, and selling hides and beef on various previous occasions, were the parts performed by appellant in carrying forward the object of the conspiracy to its ultimate purpose. To sustain this theory and show appellant's intent proof of the other thefts of cattle dealt with in the same manner as the one in question, was, we think, admissible in evidence. Illustrative cases are Camarillo v. State, 68 S.W. Rep., 795; White v. State, 45 Tex.Crim. Rep.; Petty v. State, 59 Tex. Crim. 591.
By typographical error the original opinion described the charge submitting one of appellant's defenses as a "specially prepared charge." *Page 396 It should have said "carefully prepared charge." It is quoted in the opinion and told the jury that although the animal was stolen that appellant's acquittal should follow if he was ignorant of the theft whether he was or was not employed by Hoffman. In insisting that the evidence raised an issue of accomplice and not of principal appellant reviews decisions noting the distinction between principal and accomplice and stresses the point that the theft is completed upon the original taking, contending that there being evidence that appellant was absent at the time of the taking, the court was wrong in concluding that he might nevertheless be a principal. This conclusion of the court is not a departure but a following of the rulings of this court, as is well illustrated in Smith's case, 21 Texas Crim. App., 120, wherein M.M. Smith was on trial and his conviction sustained, on a state of facts showing that while M.M. Smith was at home in Parker County, forty miles distant, other parties fraudulently took possession of cattle in Erath County, drove them to another county and they were subsequently driven by M.M. Smith to Tarrant County for the purpose of sale. M.M. Smith was held as a principal in the original taking of the cattle on the ground that they were taken pursuant to a conspiracy to steal them and sell them and divide the proceeds, his part of the conspiracy being to drive the cattle to Tarrant County and sell them after they were taken. In deciding this case the court approved the distinction between principal and accomplice as declared in Cook's case, 14 Texas Crim. App., 96; Bean v. State, 17 Texas Crim. App., 61, and as application of the principle so stated to the facts mentioned, cites the Welsh case, 3 Texas Crim. App., 413; Scales v. State, 7 Texas Crim. App., 361; McKeen v. State, 7 Texas Crim. App., 631; McCampbell v. State, 9 Texas Crim. App., 124, and Cohea v. State, 9 Texas Crim. App., 173, and concluded with the following language: "As before stated, evidence in proof of a conspiracy to commit crime will generally, from the nature of the case, be circumstantial. It is not necessary to prove that the defendants came together and actually agreed in terms to have that design and pursue it by common means. If it be proved that defendants by their acts pursued the same objects, often by the same means, one performing one part and another another 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 (Slough's case, 5 Fed. Rep., 680), and under our statute such acting together would make all principal offenders, whether present bodily at the place of the offense or not (Berry v. State, 4 Texas Crim. App., 492; Heard v. State, 9 Texas Crim. App., 1; Wright v. State, 18 Texas Crim. App., 358) and they are all principals and acting together as long as any portion or object of the common design remains incomplete; in other words, the full purpose and object of the conspiracy is consummated and accomplished. Hence, where in larceny it was shown that the conspiracy extended as well to the dividing of the stolen goods as to *Page 397 the theft; what one did between the stealing and the dividing was deemed good evidence against both." (2 Bish. Crim. Proc., 230, citing Scott v. State, 30 Ala. 503.) This doctrine is expressly recognized and adopted by us in O'Neal v. State, 14 Texas Crim. App., 582, and the same rule is announced in Allen v. State, 12 Lea (Tenn.), 424.
"Now in applying the law as above stated to the case in hand, if Jim and Dave Smith were the innocent agents of M.M. Smith, then M.M. Smith was a principal. If there was a conspiracy between all the parties to commit the theft, the part to be done by Jim and Dave being to take the property, and the part assigned to M.M. Smith being the sale after it was so taken, then all were principal offenders."
The court's charge in this case authorizes the conviction under the law of principals, and after a careful review of the subject in the light of the motion for rehearing and the authorities there cited, we adhere to the conclusion reached in the original opinion, that the facts authorized the conviction of appellant as a principal, although at the time the animal was actually taken he was not bodily present, if it was taken in pursuance to a conspiracy in which he performed a part in furtherance of the common design.
The motion is overruled.
Overruled.