Exceptions having been taken on the trial by defendant to the charge of the court as given, and also to the refusal of certain specially requested instructions, it becomes necessary that we shall determine the questions raised concerning these charges.
By reference to the statute it will be seen that whilst the first half of the second sentence quoted gives a proper definition of the term “ accomplice ” (Penal Code, Art. 79), the latter half of said sentence describes, not an accomplice, but one who under our law is known as “a.principal;” that is, one who is present, and knowing the unlawful intent, aids by acts or encourages by words or gestures those actually engaged in the commission of the unlawful act. (Penal Code, Art. 75.) The defect in this portion of the charge is that it mixes and confounds the two different characters of offenders. “An accomplice is one who is not present at the commission of an offense,” but “ any person who advises or agrees to the commission of an offense, and who is present when the same is committed, is a principal thereto, whether he aids or not in the illegal act.” (Penal Code, Art. 78.)
It is true that the rule of evidence prescribed for accomplice testimony is applicable alike to all accessories, particeps criminis and principals, and to this extent the term accomplice embraces all such offenses (Williams v. The State, 42 Texas, 392; Irvine v. The State, 1 Texas Ct. App., 301; Jones v. The State, 3 Texas Ct. App., 575; Barrara v. The State, 42 Texas, 260; Roach v. The State, 4 Texas Ct. App., 251); but this rule does not do away with the other distinctions made by the law in its definition of the character of such offenders in their relations to crime.
We are at a loss to understand the meaning of the last sentence quoted from the charge, viz.: “Contradiction or want of corroboration must be upon some material issue.” If the effort was to instruct the jury upon the legal effect and sufficiency of accomplice testimony, then it is evident that either the court has misconceived the law, or from inadvertence has reversed the rule, and thereby must have confused, if it did not mislead, the jury. They should have been told, substantially in the language of the statute, that “a conviction cannot be had upon the testi
Again: the court charged the jury that “the possession of recently stolen property is not alone sufficient to convict upon, but may be by the jury considered as any other circumstances in the case to establish the guilt or innocence of the defendant.” Now, it is not the business of defendant to establish, nor of the jury to find that his innocence has been established. The question in all criminal prosecutions is not whether defendant is innocent, but whether he is guilty or not guilty, and a jury may legally and properly find a defendant not guilty even in cases where they do not believe him to be innocent, where the proof of guilt fails to convince them beyond a reasonable doubt. “While the error in this charge would not be sufficient to cause us to reverse the case, we have thought proper to call attention to it that it may not be repeated in future.” (Patterson v. The State, 12 Texas Ct. App., 222.)
In view of the evidence we are also of the opinion that defendant was entitled to have his second special instruction given in charge to the jury, though not artistically drawn, and that the court erred in refusing it. That instruction was that “the State must prove beyond a reasonable doubt the identity of the hog charged to have been stolen, and that Bob Smith stole the same; and that the property thus identified must be proven to be the property of the person alleged to be the owner thereof in th,e information.” •
Several bills of exception were saved to rulings of the court upon questions of evidence. As shown by one of the bills, and also by the statement of facts, the defendant was arrested, after his premises had been searched and evidences of his guilt ascertained and found, by one Bates, and that during the time Bates had him under arrest he, the defendant, made confessions after he had been properly warned by Bates that such confessions might be used as evidence against him. When the State proposed to prove these confessions, it was objected by defendant that they were not admissible because Bates at the time had no
A party exercising the right of arrest under this statute is to all intents and purposes an officer cle facto for the time being, and his acts, whilst such relation to defendant continues, will subject him in effect to the same rights and penalties as attach to officers de jure. (Code Crim. Proc., Art. 246.) And the rights of defendant while in such custody would be determined as to his confessions in the same manner.
By another bill of exceptions it is shown that the court permitted the witness Bates, over objection of defendant, to tell the jury that his father, the owner of the hog, gave no consent to the taking by defendant. This was error. The best evidence of non-consent was that of the owner himself; and before secondary evidence as to that fact was admissible a reason should have been shown satisfactorily (accounting for the non-productian of the best evidence. V
On account of the errors above discussed, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered February 21, 1883.