Two propositions are presented in the motion for rehearing, *Page 374 one of which has given the members of this court no little concern. It is presented that under the facts of the case appellant could not be a principal in the kidnapping of Kirby, but, at most, would be an accomplice.
We must all agree after an exhaustive review of the holdings of this court on the law of principals that if appellant came into the case after all things had been done to complete the crime and simply to aid the confederates in escaping, or in hiding the evidence of the things they had already done, or to participate in their accomplishments, he would not be a principal. On the other hand, if he enters into a relationship with another party while the crime is being committed, and, (1) knowing the unlawful intent, aids by his acts or encourages by his words the commission of the offense, or (2) keeps watch so as to prevent any interference with the commission of the crime, or (3) actually engages in procuring aid, arms or means of any kind to assist in the unlawful act, or (4) during such time endeavors to secure the safety of the other party or of the other party and himself, or (5) procures an innocent party to commit the offense, or (6) in any manner agrees to the commission of the offense and is present, whether he renders any aid or not, he becomes a principal. Failing to do one of these things it would be difficult to conclude that he would be a principal.
It is not essential, however, to a proper discussion of this case that we go further than the facts before us, and a speculative case embracing other conditions than those under consideration may be confusing rather than helpful. Whatever the facts and circumstances, we must keep clearly before us the underlying principle, "that in every case, no matter what phase of the law is involved, the evidence must show, and the charge of the trial court submit, that at the time of the commission of the offense the parties must be acting together, each doing some part in the execution of the common purpose." Middleton v. State, 217 S.W. 1046. See also Smith v. State, 17 S.W. 558.
The authorities cited in the original opinion are here adhered to without repetition, and the reasoning indulged based on them is re-affirmed.
From the many authorities examined it is noted that the question will frequently turn on the wording of the statute of the particular state, so that consideration must be given to the language of our own. *Page 375
Art. 1169, P. C. (1925) provides that "False imprisonment is the wilful detention of another against his consent * * * whichrestrains the party so detained from removing from one place to another as he may see proper."
Art. 1177, P. C. (1925), defining kidnapping, reads in part, "When any person is falsely imprisoned for the purpose of being removed from the state * * * such false imprisonment is 'kidnapping.' " This is the section defining kidnapping under which appellant is being prosecuted.
For a better understanding, let us copy into the definition of kidnapping the definition of false imprisonment, which would read as follows, "When any person is wilfully detained byanother against his consent * * * which restrains the party sodetained from removing from one place to another as he may seeproper, for the purpose of being removed from the state, suchdetention is kidnapping."
The earnest and learned argument in behalf of appellant presented to us seems to be based upon the theory that theseizure of Kirby by Reynolds completed the offense and that the awakening of appellant and his entry into the activities which immediately followed constituted him an accessory after the fact. If the definition was fully satisfied under the facts of this case at the moment the seizure of Kirby took place so that all things that follow are no part of the kidnapping, then the appellant's theory would be correct. There is quite a distinguishment to be made between the word detention as used in Art. 1169, and embraced in Art. 1177 defining "kidnapping" and the word "seizure." "Detention" is defined as "the keeping back"; "confinement"; "restraint"; while "seizure" is to "take possession of forcibly"; "to grasp"; "to snatch"; "to put in possession." It occurs to us that while seizure means to "put in possession," detention may well be said to mean to "keep in possession for some period of time."
Using the language of the definition of false imprisonment as applied to the facts of this case, may we ask these questions:
1. Did appellant aid by acts or encourage by words Reynolds in the unlawful detention of Kirby?
2. Did he keep watch to prevent the interruption of Reynolds in the detention of Kirby?
3. Did he engage in procuring aid or arms or means to assist Reynolds in the detention of Kirby while the latter perpetrated the unlawful detention? *Page 376
4. Was appellant doing anything to secure the safety or concealment of Reynolds while detaining Kirby?
5. Was Reynolds appellant's innocent agent in detaining Kirby?
6. Assuming that appellant had agreed to and had advised the commission of the offense by Reynolds, can it be said under the circumstances here existing that appellant was present when Reynolds detained Kirby so as to bring appellant under the sixth designation of principals as set out in the Middleton case, supra?
An affirmative answer to one or more of the foregoing questions may constitute him a principal.
A brief analysis of the facts as testified to by Kirby and properly submitted to the jury will be sufficient. Appellant was sleeping when Reynolds drew a pistol and took charge of Kirby. He was in a separate cage, but whether in a separate room we are unable to tell from the record. The first thing done after appellant joined Reynolds was to go to another cage and turn out another boy. "Then they demanded me to go down the steps ahead of them. Reynolds did most of the talking all the time." * * * (S. F. p. 2) "And they told me I was just delaying the time * * *. There was lots of this talking that I don't know whether they were all talking at times, and I could not say which one every time. * * * They were both talking there part of the time (the boys). The gun was being held on me all of this time. Reynolds did part of the talking and this boy did some." (S. F. p 6.) "This defendant would go on a few feet ahead and he would say, 'Make him run; make him run.' We got down the road about a quarter of a mile and the car was there that they expected. Reynolds sent this boy and Mangum down the road to see if the car was there, and told them to go up the road and meet us. They went down about half a mile and came back and reported the car was not there. We got down to the end of this road; me and these three boys stopped and they was discussing what to do and this boy Hardie rushed up and says, 'we must go: can't stay here.' And I kept saying, 'let me go,' and they said no they would not let me go, and Hardie said, 'we'll just have to go down and get the car,' and said 'we couldn't get away from the dogs, all of us, without a car,' " (S. F. p. 7.) Again the witness testified, "He started defendant down the road to stop the car. When he got them stopped, I guess it was 200 yards from the road, he came running back and he *Page 377 said, 'hurry — make him run,' and he was threatening every few minutes and I would just keep walking." (S. F. p. 7.)
The foregoing is sufficient quotation from the testimony to reveal the connection of appellant with the detention of Kirby even before they left the building. It was continuous throughout the hours, as stated in the original opinion. Had Reynolds been interrupted at any time or place, it appears he would have been guilty of the offense of kidnapping, yet, under the facts of this case, the detention was a continuous thing until the victim was abandoned and loosed himself from his bonds in a canyon near Malakoff. If the meaning of false imprisonment as used in the article of the statute defining kidnapping means only the immediate seizure of the victim, then the legislature has used the word "detention" in a sense other than its ordinary and accepted meaning. We find nothing in the statute to so indicate. If given that ordinary and accepted meaning, detention includes and embraces all of the period of time in which the parties involved held the victim in their custody, and all of their acts may, and do under the facts of this case, constitute and are included in the offense of kidnapping. That being true, it is perfectly apparent that appellant was a principal offender and the charge was properly laid against him.
The quoting of the evidence in this case by Kirby aids in disposing of the other question raised in the motion for rehearing. Kirby's testimony was direct on the subject and sufficient upon which a jury may find him guilty. Any circumstances which may be considered in the case is secondary and, in fact, minor so that it may not be relied upon and probably was not. That being true, a charge on circumstantial evidence would have been improper.
The motion for rehearing is overruled.