Appellant presents but one question in his motion for rehearing. He contends that under certain decisions of this court and others, cited by him in his brief, that the evidence does not show or justify the jury to have found that he was an accessory under our law. His contention is tersely and accurately stated as follows:
"Appellant's contention is that he could not be guilty in this case on the facts as an accessory to the crime of seduction as charged against him, because the character of aid rendered by him as disclosed by the facts was not that direct and personal aid rendered the principal, Sam Wimberly, contemplated by our statute and as construed by the decisions of this court and of the courts of other states with similar statutes.
He cites and relies upon Caylor v. State, 44 Tex. Crim. 118; Shackey v. State, 41 Tex.Crim. Rep.; Chenault v. State, 46, Texas Crim. Rep., 351; Hargrove v. State,63 Tex. Crim. 143; Chitister v. State, 33 Tex.Crim. Rep.; Gann v. State, 42 Tex.Crim. Rep.; Miller v. State, 72 S.W. Rep., 996; Dent v. State, 43 Tex.Crim. Rep., and some New York and Georgia cases cited in A. E. Ency. of Law, notes 2 and 3, page 267, and 12 Cyc., p. 192, sec. 3, and cases therein cited.
If this court was bound by some of the general statements in some or all of these opinions of the character of aid that it takes to constitute one an accessory after the fact, they would be in point and strongly support appellant's contention. But when each case is carefully considered, it will be noticed that the general statement of what it takes to constitute an accessory is not in point, for all such general statements and quotations of the common law text-books of what it takes to constitute an accessory, were uncalled for, and in most, if not all, instancesobiter dictum. Take as an illustration the case of Caylor v. State, supra. The court held specifically in that case that the evidence was insufficient to sustain the conviction, and that was what was held and upon which the case was reversed. Again, take as an illustration the case of Hargrove v. State, supra. A careful examination of the case will show that what the court held in that case was "that the fact that he (the witness Williams) denied to Mr. Elkins (the county attorney) soon after the killing any knowledge of the matter and stated that appellant was at home (if appellant is guilty), is not such conduct as would render him an accessory," citing and quoting from several of the cases, supra, cited and relied upon by appellant. It is true that the opinion of Judge Harper in the Hargrove case proceeds to quote from other cases the said same general statements of what character of aid rendered to the principal was necessary to constitute one an accessory. *Page 303
Our statute defining an accessory after the fact is as follows:
"An accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid, in order that he may evade an arrest, or trial, or the execution of his sentence." P.C., Art. 86.
The case of Blakely v. State, 24 Texas Crim. App., 616, correctly construes our statute above, quoting it. The opinion in that case was prepared by Presiding Judge White when he and Judges Hurt and Willson constituted this court. The opinion shows that the question was carefully considered and the decision deliberately announced. That case has never been overruled by this court. It seems that no judge, from that day to this, who has ever been upon this court entertained the opinion that said decision is incorrect, unless it be Judge Henderson as indicated by him in his dissenting opinion in the Caylor case, supra. This question was thoroughly considered and discussed by this court in consultation when the Hargrove case, supra, was decided. The opinion in that case as prepared by Judge Harper at first stated that the Blakely case on this point had been overruled, but in consultation, all the judges being present and concurring, it was the opinion of the court that said Blakely case had not been overruled, but that it announced the correct doctrine and correctly construed our statute on this question; and that portion of Judge Harper's opinion as first prepared indicating otherwise was deliberately stricken out before handing it down. In order to show what was specifically decided by this court in the Blakely case, supra, we here liberally quote therefrom:
"In brief the facts proven were that, immediately after the homicide, this defendant and May went off to themselves and had a private conversation, after which May mounted a horse and rode off. Defendant Blakely then told the only other two parties who were present that they must swear before the coroner's jury to a certain state of facts which he then and there detailed, and that if they did so it would appear to said jury, and they would so find, that May was justifiable in self-defense in killing Daffin, and he would either be exonerated entirely or put upon a very light bond to answer the charge. Acting upon these suggestions, and through fear of May and defendant, the two witnesses did, at the coroner's inquest, swear, as did also Blakely, to the fabricated statement of the occurrence as devised by Blakely, and the result, as anticipated by Blakely, was that May was subsequently placed under a nominal bond, and that the grand jury for several terms of the District Court thereafter failed to indict him for the murder, and he was only indicted after it leaked out and was ascertained that the testimony given by the witnesses at the inquest was false and perjured. On May's trial under indictment for the murder, the two witnesses who had sworn on the inquest to the fabricated statement of Blakely, testified that they had sworn falsely, and developed the reasons and inducements causing them to do so. They *Page 304 also stated, as they declared truthfully, the facts attendant upon the homicide as they actually did occur, and upon this testimony, corroborated as it was by other evidence, May was convicted of murder of the first degree, and his punishment was affixed by the verdict and judgment of the court of a term of seventy-five years in the penitentiary; which judgment on appeal was afterwards affirmed by this court. (May v. State, 23 Texas Crim. App., 146.)
"It is perhaps necessary that we should further state that, after the conversation between May and defendant immediately following upon the killing, and after he had mounted a horse and ridden off as above stated, May did not appear at the coroner's inquest, nor was he seen for a day or so thereafter, until his appearance before the justice of the peace to enter into nominal bond for his appearance above mentioned.
"On this appellant Blakely's trial as accessory, the two witnesses also testified as in May's case to the facts with regard to the fabricated testimony at the inquest, and to the facts as they really occurred.
"The objections presented to this testimony are thus stated in the able brief of counsel for appellant, viz.:
"`We submit that under our statute the "aid" given to an offender which the law denounces, is something which relates to the personal conduct of the offender after the offense, or an aid which obstructs the operation of the law in its executive branch, such as concealing the person of the offender, or advising him how to escape pursuit; furnishing him means to make his flight; putting persons in pursuit off the track, and not an aid which causes justice to slumber, or perverts its course, such as compounding with a felon, concealing the transaction either by silence or by perverting the facts so as to make that appear innocent which in truth is not.'
"Mr. Bishop says `the true test whether one is an accessory after the fact is whether what he did was by way of personal help to his principal to elude punishment, the kind of help being unimportant.' (1 Bish. Crim. Law, 7 ed., sec. 695.) Mr. Wharton says: `Any assistance given to one known to be a felon, in order to hinder his apprehension, trial and punishment, is sufficient, it is held, to make a man an accessory after the fact.' (1 Whart. Crim. Law, 8 ed., sec. 241.)
"We are of opinion the facts we have stated, and upon which this case rests, bring it within the purview of the general law and our statute, supra, as to accessories. Appellant, if he did not in fact conceal May until the perjured testimony was given which justified him before the inquest, certainly aided him to the extent that he was not arrested and punished for his crime until the perjury was discovered, and but for the discovery the aid which defendant attempted to give him would have proven effectual in affording him perfect and complete immunity from apprehension, trial and punishment for the murder he had committed. *Page 305
"It is true that, under the facts disclosed, defendant might have been prosecuted and convicted under our statute for subornation of perjury (Penal Code, art. 199), but this fact did not destroy nor affect his relation to the murder as an accessory; it was simply a question with the prosecution as to which of the offenses he should be tried for. We have discussed this branch of the case thus lengthily because of the fact that our statute as to accessories has never before been directly construed."
It will be noted that the court stated "we have discussed this branch of the case thus lengthily because of the fact that our statute as to accessories has never before been directly construed."
Now in the light of our statute quoted above and of the first decision of this court construing it on this point, let us see what character of aid appellant rendered to his principal, Wimberly, in this case. We do not propose to go into any lengthy statement of the evidence. It was sufficiently stated in the original opinion. We will merely briefly restate the salient point.
The evidence was sufficient to show that Wimberly had seduced the girl as charged in the indictment, and that appellant had full knowledge thereof as was required to be found by the charge of the court and was found by the jury in this case. It was further clearly shown that the grand jury of Comanche County, where the offense is charged to have been committed, was in session, having just been convened, organized, etc., and they were then specifically investigating, among others, the said charge of seduction against Wimberly, and that on Wednesday before this offense is alleged to have been committed on Thursday, had Tom Waldrip, the brother of the seduced girl, who was a material witness, before them; that in further investigation of the case the grand jury had had a subpoena issued and served upon the seduced girl, Mattie Waldrip, summoning her to appear before the grand jury as a witness in the same matter, and doubtless the grand jury, in further investigation of it, would have had her father, T.G. Waldrip, also before them as a material witness in the investigation. The evidence was sufficient to show that appellant and said Wimberly knew, or had notice, of all this. Tom Waldrip and his father were in the little town of Gustine, their trading point, on this Thursday evening, when appellant first approached T.G. Waldrip and proposed to hire him, not only to get away from Comanche County himself, but go at once and take his daughter, said Mattie Waldrip, with him, and that he did then hire T.G. Waldrip to carry out this plan, and paid, or had paid, nearly $200 in cash to so have them to leave, for no other purpose than to aid said Wimberly, and to keep said witnesses from appearing before the grand jury against Wimberly and to prevent an indictment, his arrest and a trial for the commission of said crime of seduction. Appellant and those then acting with him, entered into the particulars with Waldrip of how, and when he, appellant, and those associated with him, *Page 306 were to spirit away these witnesses that night, and have them to go "right now." Waldrip, the father and his son Tom, were to go to where the girl Mattie Waldrip and her sister were, some several miles from Gustine, take them, in the dead hours of the night, from where they were then living, some ten or twelve miles to his camp, and then, in the dead hours of the night, he the father, and the girls were to be taken away by appellant from Comanche County and secreted where they could not be found, or run out of the State, to thereby directly aid said Wimberly in preventing his indictment, and trial, and arrest. Wimberly furnished one of the teams, if he did not also furnish one of the vehicles, which appellant and the other parties interested with him, were to take these witneses away from Comanche County, and out of the jurisdiction of the Comanche County court. Wimberly went with them part of the way that night, driving one of the teams, when they were going after these witnesses. Wimberly was a party to the whole thing and did actually participate therein, and had appellant and the other party with him to take these witnesses away. Thereby appellant rendered him the aid contemplated by our statute. No greater, or more direct, personal aid could have been rendered to Wimberly by which he was to evade a trial and an arrest under an indictment charging him with the seduction of this girl. Spiriting the necessary and important witnesses out of the jurisdiction of the court, and out of the State, as the indications were that these witnesses were to leave the State is incomparably greater aid rendered directly and personally to the appellant than of merely furnishing a horse or vehicle or money to himself get away. Even if he could have or should have gotten out of the State if an indictment had been found against him, he could have been arrested anywhere in the United States, and perhaps other nations, extradited, and brought back to Comanche County for trial; but if appellant had spirited the witnesses out of the State there is no way known under our law whereby such witnesses could legally have been returned to the jurisdiction of the court in Comanche County, or their evidence had, to find an indictment, and Wimberly be arrested and tried.
So that we hold that under our statute anyone who, knowing that an offense has been committed, in order to prevent the offender from being indicted, and arrested or tried, spirits away or hires the material witnesses to leave so that they cannot be had before the grand jury or trial court, this is such aid personally and directly to the offender as would make such person an accessory, all the other requisites being shown.
We further hold that the construction of our accessory statute in the Blakely case is a correct construction thereof and that all of the other general statements in the decisions of this court indicating otherwise are hereby expressly disapproved.
The motion is overruled. Overruled. *Page 307