“An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense,” etc. (Penal Code, Art. 79.)
Appellant was indicted as an accomplice of one Isham Scott in the murder of one Joe Spears. Scott had been indicted in a separate indictment for the murder, and was tried and convicted, and his case affirmed on appeal in this court. (12 Texas Ct. App., 594.) In his motion to arrest the judgment, defendant called in question the sufficiency of the indictment; and in a very able, ingenious and exhaustive printed brief, which we have maturely considered, his learned counsel insists that the indictment is not explicit in sufficiently alleging the time of the death of Sp ears, the party averred to have been murdered. If his propositions were new, and were matters to be determined as of first impression, we might, in view of the persuasiveness of his argument, feel required to discuss the points raised; but the same questions have been frequently brought in review and heretofore decided, and so we do not feel obligated to go over and discuss them anew. Suffice it to say that under the previous authorities and decisions the indictment is good.
In order to obviate a continuance of the case by the State, defendant agreed that the prosecution might read as the evidence of the two absent witnesses their testimony given on the trial of Isham Scott, as the same was found reported in the case of Scott v. The State, 12 Texas Court of Appeals, 594; which, under the agreement, was read as reported by the prosecution. This is complained of as error, it being insisted that such evidence read from the reported case of Scott was illegal. We do not think so. Defendant agreed to the admission of the testimony, and but for his agreement, doubtless it would never have been offered in this shape. He cannot be heard to complain where he was a party to, and where his own action brought about, the very matter of which he complains. He could waive the presence of the witnesses if he so desired, and agree that if present they would swear *402as they had previously done. In fact, he could waive any right guaranteed him by the Constitution and laws, except the right of trial by jury. (Code Crim. Proc., Art. 23.)
Several objections are urged to evidence admitted, and numerous supposed errors are pointed out with regard to the charge of the court. Hone.of these errors are, in our opinion, established. In the admission of evidence the court seems to have violated no well established rule of law, and the charge, in our opinion, presented in a most clear, satisfactory and explicit manner the law applicable to all the material phases of the case. Defendant has had a fair and impartial trial. As shown by the evidence, he suggested, planned, and encouraged the murder, if he was not actually present and participating in it, of an old man in whose employ he had been, and who in his dying moments seems to have had unbounded confidence in his honesty and integrity; whilst "it appears that his motive was the basest and most despicable, viz., to obtain part of the little sum which the deceased had, by hard labor, succeeded in laying up from his daily occupation. Defendant has had his rights accorded him under the law, and if guilty, as the jury and court below have found that he was, and upon evidence which, in our opinion, warranted the finding, he cannot complain of the punishment. We find no error in the record, and the judgment is affirmed.
Affirmed.
Opinion delivered June 9, 1883.