The. appellant and three others were indicted for theft of a gelding. On the trial all the defendants claimed a severance, which being granted, the appellant was tried separately and convicted, and a new trial having been refused him in the court below, he prosecutes this appeal from the judgment.
Several errors are complained of in the motion for a new trial, and in an assignment of errors set out in the transcript, though there is but one bill of exceptions embraced in the record. It is proposed to consider the errors complained of, in so far as they are deemed to have a controlling influence upon the verdict and judgment appealed from. On the trial the judge presiding instructed the jury as follows : “ All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others *501are present, and, knowing the unlawful intent, aid by acts, or encourage by words or gestures, those actually engaged in the commission of the unlawful act, such persons, so aiding or encouraging, are principal offenders, and may be prosecuted and convicted as such.” To this portion of the charge a bill of exceptions was taken, on the ground, as stated in the bill of exceptions, “ that it was not warranted by the evidence in the case, as the evidence did not show Berry present when the offense was committed, or that he knew of it when committed, or that he either encouraged by words or gestures those who committed the offense.”
It is not contended that, abstractly considered, the charge was not a correct enunciation of law; and, in fact, such position could not well be maintained, as it is in almost the exact language of the Penal Code, articles 214, 215. Pasc. Dig., arts. 1809, 1810. But it is insisted that the charge was erroneous because not applicable to the facts proved on the trial. It is conceded that if the charge did not apply to the proofs adduced it ought not to have been given, because, if on no other account, it would have tended to divert the minds of the jury from the true issues involved. In order, then, to determine whether the instruction was applicable to the facts proved or not, it will be necessary to notice briefly the evidence adduced.
Agreeably to the statement of facts, the theft was committed in Williamson County, on the night of May 30, 1876. On June 17, 1876, the appellant and another party charged in the indictment with the theft were arrested in Kimble County, a distance of 150 miles from where it is alleged the theft was committed. When arrested, they made disclosures which led to the discovery, in the vicinity, of the stolen animal. On the way from Williamson County to Kimble County the animal was seen, with others, in charge of two other persons not named in the indictment, and the appellant, after his arrest, stated that he and his companion had, on the night before, been *502riding a short distance behind the wagon of another one of the persons charged in the indictment with the theft, and took alarm and secreted themselves on the mountain where they were arrested, and that they were riding the stolen animal .and another. The proofs do not disclose whether the appellant or his companion had been riding the animal in question. Under these circumstances, we are of opinion the charge complained of was proper. Article 214 of the Penal Code (Pasc. Dig., art. 1809) declares that “ all persons are principals who are guilty of acting together in the commission of an offense.” The following articles afford examples as to what relation to the crime committed would create the relation of principal.
We do not understand that it is necessary, in order to constitute this relation to the crime, that all should be actually present and acting at one and the same time, but that the whole be in pursuance of a plan in which the minds, not the hands, of all concur. “When there are several acts, constituting together one crime, if each act is separately performed by a different individual, in the absence of the rest, all are jointly principals as to the whole.” 1 Bishop’s Cr. Law, sec. 598; Welsh v. The State, 3 Texas Ct. App. 413.
The charge certainly submitted to the jury the question of the guilt or innocence of the accused, together with the presumption of innocence, and the reasonable doubt, and as to the credibility of the witnesses, in a fair and impartial manner, and in which we find nothing of which the appellant can complain.
In the original and amended motion for a new" trial the appellant complains that the court erred in permitting the State to prove the declarations of the defendant while under arrest, and ‘ ‘ that the court erred in permitting the State to sever the defendants, Berry, Bybee, and Ake, who were all joined in the indictment and indicted together, and in permitting the county attorney to elect and put Berry on trial first, without the consent of Berry.”
*503Under the provisions of the Code of Criminal Procedure, article 661, the confession of a defendant may be used against him, if it appears that the same was freely made, without compulsion or persuasion. But by the succeeding article, 662, it is further provided that the confession shall not be used if, at the time it was made, “ the defendant was in jail or other place of confinement, or while he is in custody of an officer, * * * unless, in connection with such confession, he made statement of facts or of circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property,” etc. In the present instance the testimony appears to have been admitted without objection by the accused, and on that account he cannot now be heard to complain. But the proof shows that the confessions of the appellant and his companion did tend to establish his guilt, in that they led to. the discovery of the stolen property, and were, therefore, not within the statutory inhibition against the admission of confessions made by one under arrest.
With regard to the severance, the record does not sustain the position taken in the motion; on the contrary, the judgment of the court recites, and is not contradicted, that the severance was granted at the instance of all the defendants. The entry on the face of the record is as follows :
“And now, on this the 15th day of April, A. D. 1878, this cause being regularly reached and called for trial, comes the State of Texas, by her county attorney, and announced ready for trial, and came the defendants, in person and by attorneys, and claim a severance for each defendant in this cause, which is accordingly granted by the court; and said severance being granted by the court, the defendant Silas Berry announced ready for trial,” etc. The appellant, having participated in procuring a severance, cannot now be heard to complain. The fact that he was jointly indicted *504with others did not prevent the court from granting a separate trial to each defendant, on a proper showing.
It is contended, on behalf of the appellant, that the testimony of guilt is not of a sufficiently conclusive and convincing character. Cases of this nature often involve the right of the jury to infer from facts proved the existence of other facts, and to determine the intent existing at the time from the facts proved. And by our system of criminal procedure it is the peculiar province of the juries to deal with the evidence and the credibility of the witnesses. After verdict, the sufficiency of the evidence becomes a question for the judge to whom a motion for a new trial is addressed.
So, when the jury, under proper instructions, finds sufficient evidence to convict, and when the judge, with his means of judging of the evidence by having the witnesses before him, and having an opportunity to observe their manner of testifying and how they stand the test of cross-examination, deems the testimony sufficient to warrant a conviction, this court would not feel warranted in interposing, unless, upon examination of the record, it should appear that the finding is against the testimony, or without sufficient legal evidence to support it. This is not such a case. On the contrary, there was, in our opinion, a sufficient amount of legal evidence connecting the defendant with the commission of the offense to warrant the jury in the conclusion that the appellant was a principal in the theft, under the law given in charge by the judge.
After carefully considering the whole case as presented by the record, in the light of able and exhaustive oral and written argument, we fail to discover any just ground to question the correctness of the verdict and judgment; and, therefore, the judgment of the District Court of Williamson County is affirmed.
Affirmed.