Houston was convicted of purchasing two hundred and seven head of cattle from Willis Arrington, without obtaining therefor a bill of sale from the owner; the fine imposed being ten thousand three hundred and fifty dollars.
It is alleged in the charging portion of the information that Houston “ did then and there unlawfully and willfully purchase from Willis Arrington certain animals, to-wit, two hundred and seven head of cattle, without obtaining therefor a bill of sale from the owner or agent of said cattle; contrary,” etc. Motions to quash and in arrest were made and overruled.
It is insisted by counsel for appellant that the information is insufficient because Arrington is not alleged to be the owner of the cattle purchased, and because the information does not charge property in any person. Unless Arrington is alleged to be the owner of the cattle, the information fails to name the owner, and is for that reason fatally defective. Does the information charge Arrington to be the owner of the cattle? Most evidently it does not. Suppose Arrington had stolen the cattle, he would neither have been the owner nor the agent of the owner. Let us further suppose that Houston purchased from Arrington, and obtained a bill of sale to the cattle from him; every word, each and every allegation contained in the information would be true, but who would assert the guilt of Houston? It must appear upon the face of the indictment or information, and from no other source, that, if true, the person therein accused is guilty of the offense charged. The guilt of the accused is thus made to appear by direct and positive allegations of every fact constituting the offense. This must not be done by argument or inference, but by direct, positive and certain averments. (Bush v. The Republic, 1 Texas, 455; Moore v. The State, 7 Texas Ct. App., 608.)
Though the judgment must be reversed and the prosecution dismissed, we nevertheless deem it proper and necessary for us to make some observation upon two other subjects presented by the record.
There being evidence strongly tending to prove that Houston was at Austin at the time the cattle were delivered to Jeffries, *599his agent, defendant by his counsel requested the court to charge the jury as follows: “ If the jury believe from the evidence that Houston was absent from the county at the time of the delivery of the cattle, and that said cattle were delivered without his advice or consent, without a bill of sale being given, they will acquit the defendant.” This charge the court refused, and a bill was reserved.
The Assistant Attorney General insists that as the offense charged and that for which defendant is convicted is a misdemeanor, and as there are no accessories to misdemeanors, but all are principals, the action of the court was correct. While it may be true that in misdemeanors all are principals, it does not result that Houston would be criminally responsible for the acts of his agent Jeffries, unless he had authorized him to purchase and receive the cattle without a bill of sale. What is the rule upon this subject? Mr. Bishop, in his work on Procedure, states it very concisely.
He says: “One who does a thing on procurement of another is in civil jurisprudence termed the agent, and the procurer the principal. But, in the criminal law, agency never excuses an act; therefore the agent is known and holden as principal equally with him who proceeds self-moved. The procurer is a principal also if the thing is treason, petit larceny or misdemeanor.” (Italics ours.) The procurer is a principal. To be held such, what must he procure? Evidently the commission of the acts and omission constituting the offense. That he procured Jeffries to purchase and receive the cattle may be conceded, but he would not be criminally responsible'. These acts alone, to-wit, the purchase and reception of the cattle, do not constitute the offense, the failure to take a bill of sale to the cattle being the gist of the offense. To hold him thus responsible, it must be shown, proven, that he procured or authorized Jeffries not only to purchase and receive the cattle, but to do so without receiving a bill of sale.
In felonies, to be a principal at common law, the party must not only be present, but be the actual perpetrator of the crime. Under our code, he must be present or keeping watch; or, if not actually present, he must act together with those actually engaged in the commission of the offense. In misdemeanors this distinction does not obtain, but if he advised others, or acts through an agent, whether present or not, or whether acting with those actually engaged in the commission of the offense or *600not, he is a principal, and can be prosecuted and convicted as such. But he must procure his agent, or advise others to do or not to do the acts which constitute the offense, or which may reasonably result in the commission of an offense. ■
The court charged the jury that “a failure to secure a written transfer, or bill of sale, at the actual delivery of the cattle, would be in violation of law.” Did this charge contain the correct construction of Article 779 of the Penal Code? Said article reads as follows: “Any person who shall purchase any animals or hides of cattle without obtaining a bill of sale from the owner or his agent, shall be fined,” etc. The question: At what time must the bill of sale be obtained? 1, it is argued by counsel for defendant, that if the herd is to be driven from the county to market, it is sufficient if the bill of sale is obtained before the herd leaves the county; 2, that if the bill of sale is obtained before prosecution is commenced, this will suffice, though not taken upon actual delivery.
Article 779, though not as explicit as it could have been made, evidently was intended to require the bill of sale to accompany the delivery of the cattle. Any other construction of the statute would defeat the purpose of the law, which was evidently intended to protect owers of stock from illegal transactions therein by clandestine removals of the same from their accustomed range, and out of constructive possession of their rightful owners, under the guise of mythical sales or pretended transfers, made to avoid the penalty of ,the offense in case of detection.
We have thought it proper and necessary to make the above observations upon these two subjects, to the end that, in the event of other prosecutions, the court below may be governed by the principle herein stated. We have not discussed all of the points presented in the record,.because we are not certain that they will arise in another prosecution.
The information being insufficient, the judgment is reversed and the prosecution dismissed.
Reversed aiid dismissed,
Opinion delivered March 17, 1883.