Appellant has presented a motion for rehearing in which he urges two propositions, both of which have given us much concern. The first is that the evidence demonstrates that appellant was not a "principal" in the kidnapping of Mr. Kirby; second, that the case is one dependent on circumstantial evidence and a charge upon such issue should have been given.
It is well to get clearly in our minds when a party is a "principal" *Page 378 in the commission of an offense. In Middleton v. State,86 Tex. Crim. 307, 217 S.W. 1046, it was pointed out that some confusion had arisen regarding the question and it was undertaken in the case mentioned to clarify the law upon the subject. We quote from the opinion as follows: "* * * Article 74 of our Penal Code says that all persons who are guilty of acting together in the commission of an offense are principal offenders. Following this comprehensive general statement of the underlying principle, which is acting together in the commission of the offense, come articles 76 to 78, each pointing out specific ways in which the parties may be said to act together. The six specific definitions in these articles held that in the following cases the parties are principals:
"(1) When A. actually commits the offense but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.
"(2) When A. actually commits the offense but B. keeps watch, so as to prevent the interruption of A.
"(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.
"(4) When A. actually commits the offense but B. at the time of such commission is endeavoring to secure the safety or concealment of A. or of A. and B.
"(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.
"(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.
"Of these six statutory ways in which parties may act together and be principal offenders, it will be seen that two only require the presence of the coprincipal with the one actually doing the criminal act, while four make him a principal though physically absent from the scene of the crime; but no confusion will arise if we 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." *Page 379
In addition to the four instances pointed out in the opinion in Middleton's case where a party may be a principal though physically absent from the scene of the crime a fifth may be mentioned. In Smith v. State, 21 Tex. Cr. App. 107, 17 S.W. 558 it appeared that a conspiracy had been entered into between M. M. Smith and a number of other people involving the theft of cattle in Erath County. By the terms of the conspiracy the cattle were to be stolen by the other conspirators but were to be delivered to M. M. Smith in Parker County, and it was thenM. M. Smith's part of the conspiracy to sell the cattle anddivide the proceeds among himself and the other conspirators. It was held that under these circumstances M. M. Smith was a principal in the theft of the cattle although he was not present at the place of the theft and was doing nothing at the time the theft was committed in furtherance of the common design. The holding in the Smith case adds still another — the fifth — instance where one may be a principal although not personally present at the time the offense is committed. The Smith case has been followed and the principle there announced approved many times by this court, some of the cases being as follows: Kolb v. State, 88 Tex.Crim. R., 228 S.W. 210; Smith v. State, 21 Tex. Cr. App. 133, 17 S.W. 558; Byrd v. State,117 Tex. Crim. 489, 38 S.W.2d 332; Burow v. State, 85 Tex. Crim. 133,210 S.W. 805; McInnis v. State, 122 Tex.Crim. R.,54 S.W.2d 96; Coy v. State, 131 Tex.Crim. R.,100 S.W.2d 1016; Miller v. State, 133 Tex.Crim. R., 105 S.W.2d 1097; Thornton v. State, 136 Tex.Crim. R., 127 S.W.2d 197.
It must be borne in mind that because a person has been a party to a conspiracy to commit a crime it does not necessarily follow that such person is a principal in the commission of the crime which is contemplated by the conspiracy.
In our original opinion we quoted Sec. 693, p. 352, Branch's Ann. Tex. P. C. as follows: "It makes no difference at what time one enters into a conspiracy to commit a crime; every one who enters into the common purpose and design is generally deemed a party to the act which has been done before by the others and to every other which may be done by any of the others before the termination of the conspiracy in furtherance of the common design." When this statement is understood as the announcement of a rule of evidence it is absolutely correct. At whatever time one enters into a conspiracy, the acts or words done or said by any of the other conspirators in furtherance of the common design is provable against each of them, and in that sense each is deemed a party to the acts done or words *Page 380 spoken by the others, but it is not to be understood that in the commission of the crime which is contemplated by the conspiracy that all conspirators would be principals. They become such only when brought into that relation by the evidence under the statute and rules regarding principals heretofore referred to. See Cook v. State, 14 Tex. Cr. App. 96.
In Bean v. State, 17 Tex. Cr. App. 60, accused was charged as a principal with the murder of Charles Stevens. The question arose as to whether accused was guilty as a principal or an accomplice, and it is stated in the last paragraph of the opinion that according to accused's own confession he was guilty both as an accomplice and as an accessory, and that under the indictment as it was framed he could not legally be convicted of either of these offenses. Drawing the distinction between a principal and an accomplice, Judge Wilson quoted from Cook v. State, 14 Tex. Cr. App. 96, and he then makes the following very pertinent observation with reference to the distinguishing features of the two offenders. "We must confess that, to our minds, the distinction between these two characters of offenders is often shadowy and indistinct. It is as clearly drawn in Cook's case as it is possible perhaps to draw it. The dividing line between the two is the commencement of the principal offense. If the parties acted together in thecommission 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." See also O'Neal v. State, 14 Tex. Cr. App. 582; O'Quinn v. State, 55 Tex.Crim. R..
In Petty v. State, 128 Tex.Crim. R., 82 S.W.2d 965, accused had been convicted of the offense of receiving and concealing stolen property, but contended strenuously that if guilty *Page 381 at all he was guilty as a principal, basing it on the proposition that if there was a conspiracy entered into by accused and two other parties to commit the theft of sheep, and that the sheep were stolen during the existence of the conspiracy, and in furtherance of the criminal design of all, that appellant, if guilty at all, was guilty as a principal. It was not contemplated that Petty would sell the sheep and divide the proceeds with the other conspirators. Petty was to pay a specified price for the sheep when delivered to him, and the other conspirators had no further interest in them nor the proceeds. This Court said in the opinion on motion for rehearing: "In determining the question it must be borne in mind that the mere fact that a conspiracy to steal is shown does not make all parties to the conspiracy principals in the theft. Branch's Ann. Tex. P. C. Sec. 700, p. 359, Burow v. State, 85 Tex.Crim. R., 210 S.W. 805; Mitchell v. State,44 Tex. Crim. 228, 70 S.W. 208; Sessions v. State, 37 Tex. Crim. 58, 61, 38 S.W. 605; Bell v. State, 39 Tex.Crim. R.,47 S.W. 1010; O'Quinn v. State, 55 Tex.Crim. R., 115 S.W. 39." See also Gammel v. State, 124 Tex.Crim. R., 62 S.W.2d 139.
Unless appellant was so connected with the commission of the crime of kidnapping Kirby as to characterize him a principal therein, the fact that appellant profited by it to escape from the training school and did some subsequent act in furtherance thereof would not make him a principal. In Walker v. State, 29 Tex. Cr. App. 621, 16 S.W. 548, it appears that Shearra shot Mallory. Walker struck Mallory after he had been shot. The State there contended that under the circumstances Walker's act was a ratification and endorsement of what Shearra had previously done, and that thereby Walker became a principal in the killing of Mallory. This court said: "We do not know of any such rule of criminal law. The doctrine of indorsement or ratification of an act already committed by another, so as to make the indorser and ratifier equally guilty with the main actor or party indorsed, is a principle and rule of conduct which we have not found laid down by any of the standard elementary authors of criminal law, and we know of no such rule having been announced in any of the decisions of the courts of last resort in this country, nor have we been cited to any authority bearing out that proposition by the learned and distinguished counsel for the State."
Art. 1169 P. C. (1925) provides that: "False imprisonment is the wilful detention of another against his consent * * * which restrains the party so detained from removing from one place to another as he may see proper." *Page 382
Art. 1177 P. C. (1925) reads in part: "When any person is falsely imprisoned for the purpose of being removed from the State * * * such false imprisonment is 'kidnapping.' "
The evidence is undisputed that by a subterfuge Reynolds induced Kirby to unlock the door of his (Reynold's) cell or quarters, whereupon he presented a pistol at Kirby and thereby forced him to accompany Reynolds to the cell or room occupied by appellant, forced Kirby to unlock the door to appellant's quarters, where they found appellant in bed and asleep. Reynolds awakened appellant and said to him "Let's get going." Appellant, barefooted, left the building with Reynolds and Kirby, the latter still intimidated by the pistol in Reynold's possession. Under our statute the crime of "kidnapping" was complete when Reynolds willfully detained Kirby if the detention was for the purpose of removing Kirby from the State. It was not necessary that the removal be consummated. It was sufficient that the purpose to remove existed at the time the unlawful seizure or detention occurred. See People v. Harrison,261 Ill. 517, 104 N.E. 259.
Reverting now to the principles announced in Middleton v. State, 86 Tex.Crim. R., 217 S.W. 1046, and applying them to the undisputed facts, — what connection did appellant have with Reynolds' act which would fix the status of a principal upon appellant? (1) He certainly did not aid by acts nor encourage by words Reynolds in the unlawful seizure of Kirby. (2) He was not keeping watch to prevent the interruption of Reynolds. (3) He was not engaged in procuring aid, arms or means to assist Reynolds while the latter perpetrated the unlawful detention and seizure of Kirby. (4) Appellant was not doing anything to secure the safety or concealment of Reynolds. Appellant slept while Reynolds acted. (5) Reynolds was not appellant's innocent agent. (6) Assuming that appellant had agreed to and advised the commission of the offense, by Reynolds, can it be said under the circumstances here existing that appellant was "present" when Reynolds took Kirby in charge so as to bring appellant under the sixth designation of a principal? He was in a different room or cell from Reynolds, not shown to be in sight of the place where Kirby was seized, and therefore, not in a position to have given signals to Reynolds even had appellant been awake. Likewise, if awake, he was in no position to have gone to Reynolds' aid, if such aid had been necessary. We quote from 16 Corpus Juris, page 126, Sec. 114, as follows: "CONSTRUCTIVE PRESENCE. The presence at the place and time of the crime required to make ore a principal in the *Page 383 second degree, or an aider and abettor, may be constructive, as where one, acting with another in the pursuance of a criminal design, is so situated when the crime is committed as to be able to assist in its commission. As a general rule, one is to be deemed constructively present if he is at the time performing any act in furtherance of the felony or is in a position to give information to the principal which would be helpful to the end in view, or would prevent others from doing any act by way of warning which would put an obstacle in the way of the consummation of the crime or render its consummation more difficult; and it is immaterial at what distance he may be from the scene of the felony. And a fortiori he is to be deemed constructively present if he is near enough to render assistance if need be and to encourage the actual perpetration of the felony." See also 22 C.J.S., Criminal Law, sec. 86.
This principle was recognized in Pruitt v. State, 91 Tex. Crim. 189,237 S.W. 572. The question there was whether accused was a principal in a robbery. This court said: "He was present in the sense that he could see what was going on, and was near enough to have interposed in behalf of Alford to aid him in carrying out his unlawful purpose if an interruption of any kind had arisen."
In principle the same, is Rowan v. State, 97 Tex.Crim. R.,260 S.W. 591. To hold appellant responsible for Reynolds' act because he took advantage thereof to escape from the Training School and flee with the others would be opposed to the holding in Walker v. State, 29 Tex.Crim. R., 16 S.W. 548, against the doctrine of ratification of a criminal act so as to become a principal therein.
After mature deliberation we have reached the conclusion that under the undisputed facts appellant cannot in law be held to have been "present" when the offense was committed by Reynolds, and therefore was not a "principal" in such offense. In reaching this conclusion the case of Coomer v. State,97 Tex. Crim. 588, 262 S.W. 495, has not been overlooked. Coomer and two other parties were engaged in the unlawful manufacture of whisky. They had agreed not to submit to arrest. All of them were armed. Accused had temporarily laid his gun aside and gone a few steps from his companions. At this time officers appeared and arrested accused. He immediately gave a signal to his confederates who fired upon and killed one of the officers. Accused urged that he could not have been a principal in the killing because he was under arrest at the *Page 384 time it occurred. The contention was overruled on the ground that he was physically present, and although he had been placed under arrest he aided the other confederates by giving the signal upon which they acted, from which acts the death of the officer resulted. Upon the facts Coomer's case is readily distinguishable from the one presently considered.
The other proposition urged upon motion for rehearing is that the trial court should have charged upon circumstantial evidence. The trial court's attention was called to the omission of an instruction on circumstantial evidence by proper exception to the charge
All of the State's criminative evidence comes from Mr. Kirby, and we find only one statement from him upon which a contention could be based that the evidence of appellant's connection with the main crime was direct. The statement referred to follows: "While we were out they discussed that they had made the arrangements that evening about what they were going to do, him and Bulldog (Reynolds) and Errie (appellant) when talking to those Houston boys said he told them that he told Bulldog to be sure and let him out when he got out." It will be noted that the foregoing is not an unequivocal admission of appellant that he had agreed to kidnap Kirby for the purpose of taking him out of the State. In order to take the case out of the rule of circumstantial evidence the admission must be unequivocal as to the commission of the crime. If it is only by inference from the admission that it can be determined that accused committed the crime the court should charge on circumstantial evidence. See Branch's Ann. Tex. P. C., Sec. 2478, p. 1341 and cases there cited. The other facts clearly show, we think, that appellant was not a party to any understanding with the boys (called the Houston boys) who furnished the "get away car" that appellant would be with Reynolds. When Reynolds caused Kirby to unlock the door to appellant's quarters he was asleep and left without putting on his shoes. The car was not immediately contacted, and appellant apparently was unaware that one was expected because he kept insisting that they could not escape on foot, and suggested more than once that they go to town and secure a car. It further appears that appellant's presence with Reynolds was a surprise to the "Houston boys" because they debated whether they would let him go with them. It was only after Reynolds strongly recommended him, and upon appellant's promise to do as he was directed, that they finally consented to take him along with them. The first active part appellant ever took in guarding Kirby occurred at *Page 385 Corsicana where appellant with a shotgun, and one of the "Houston boys" with a pistol, kept Kirby under guard while the others went with the car after gasoline. We believe, under all the facts and circumstances, that the court should have charged on circumstantial evidence.
For the reasons stated the writer believes appellant's motion for rehearing should be granted, the judgment of affirmance should be set aside, and the judgment of the trial court should be reversed and the cause remanded, and therefore, respectfully enters his dissent to the conclusions of his brethern.
ON APPELLANT'S APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.