Dissenting Opinion by Hurt, J.
Hurt, Judge.This is a conviction for theft of cattle, the property of Eugene and W. A. Trammell. The point raised on the indictment was disposed of in the Jim Smith case, a companion case to this decided at the present term. The view I take of this case renders necessary a discussion of the other questions raised.
The theory of the State is that appellant, with others, conspired to steal the cattle in question, and that in pursuance of this conspiracy the cattle w.ere taken by others, and at the time of the taking the appellant was doing some act in aid of those actually engaged in the taking, and was therefore a principal in the theft. I desire to discuss, first, what acts constitute the actor a principal under our code; second, was appellant, not being present at the taking, engaged in any act which would make him a principal?
First question: Who are principals under our code?
How, I desire to state and prove the following proposition: That, where the accused is not present at the commission of the offense the statute specifically points out what he must be doing to constitute him a principal. Then to the statute. Article 74, Penal Code, declares that all persons are principals who are guilty of acting together in the commission of an offense. What are we to understand by “acting together,” as used in this article? Does it mean that if the parties act together in the most comprehensive sense of the expression, that they are acting together within the meaning of this article? I think not, for, if so, why provide in Article 75 that “when an offense is actually committed by one or more persons, but others are 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, they are principals? Would not such be “acting together,” and hence principals under Article 74?
These observations apply also to those who keep watch so as to prevent the interruption of those actually engaged in the commission of the unlawful act; in fact, to each and every state *127of facts constituting the actor a principal by the provisions of Article 76. In one sense they are acting together in the commis - sion of the offense, but not in the sense of Article 74.
I believe that much light can be obtained from the common law upon this subject, and when we consult it we will find that our code has departed but little from the common law. At common law there are principals in the first and second degrees. A person who is a principal within the meaning of Article 74 would at common law be a principal in the first degree; hence I believe that a principal under Article 74 “is he that is the actor or absolute perpetrator of the crime.” Mr. Blackstone says: “A man may be a principal in an offense in two degrees. A principal in the first degree is he that is the actor, or absolute perpetrator of the crime; and in the second degree, he who is present, aiding and abetting the fact to be done.” To be a principal in the second degree it is not necessary for the party to be actually present; for, says this learned writer, “which presence need not always be an actual, immediate standing by, within sight or hearing of the fact, but there may be also a constructive presence, as when one commits a robbery or murder, and another keeps watch or guard at some convenient distance.” What great similarity in the common law and our code so far! So striking is this similarity, that I have no doubt but that the provisions of the code upon this subject were taken from the common law.
This similitude does not stop with Articles 74 and 75, but extends to Article 77; for, says the author, “and this hath also other exceptions; for in case of murder by poisoning, a man may be a principal felon by preparing and laying the poison, or persuading another to drink it, who is ignorant of its poisonous quality, or giving it to him for that purpose; and yet not administer it himself, nor be present when the very deed of poisoning is committed. And the same reasoning will hold with regard to other murders committed in the absence of the murderer, by means which he had prepared beforehand, and which probably could not fail of their mischievous effect; as by laying a trap or pitfall for another, whereby he is killed; letting out a wild beast with intent to do mischief, or inciting a madman to commit murder, so that death therefrom ensues. In every one of these cases the party is guilty of murder as a principal in the first degree. For he can not be called an accessory that necessarily presupposes a principal; and the poisoning, the pitfall, the beast, *128or the madman, can not be held the principal, being only the instruments of death. As, therefore, he must be certainly guilty either as principal or accessory, and can not be so as accessory, it follows that he must be guilty as principal, and if principal, then of the first degree; for there is no other criminal, much less a superior in the guilt, whom he could aid, abet, or assist.” (Bl. Com., vol. 2, b’k 4, p. 32.)
We have just such principals as are described by Mr. Blackstone. In fact our code is not so specific as the law writer. Suppose the means mentioned in Article 77 are not resorted to, and the party is acting alone, without aid from1 others in any manner, our code assumes him to be a principal.
We have found that “acting together” in Article 74 means that the persons must be the actors, the absolute perpetrators of the crime, or principals in the first degree at common law; and we have found that the persons described in Article 75 were principals in the second degree at common law, and are made principals by our code, there being no degrees in principals in this State. Those, to be such, must if present know the unlawful intent, aid by acts, or encourage by words or gestures. Aid or encourage whom? Those actually engaged in the unlawful act, the absolute perpetrators of the crime. Or those who, not being actually present, keep watch so as to prevent the interruption of those engaged, the absolute perpetrators of the crime, in the commission of the crime. If not the absolute perpetrators of the crime, we are informed just what the person or persons must do, or be doing, to constitute him or them principals.
.We now proceed to notice some principals, made so by our code, who are not actually or constructively present. They are found in Article 76. How these persons are principals, not at common law, but made so by our code. Who are they, or what acts must they do, or be doing, when the offense is being committed, to constitute them such? They must be engaged in procuring aid, arms, or means of any kind. For what purpose? To assist in the commission of the offense. At what time or when must these persons be engaged in procuring aid, arms, or means of any kind? While others—the actual perpetrators—are executing the unlawful act. Or, to be a principal under Article 76, the persons must endeavor to do what? To secure the safety or concealment of the offenders. When? At the time of the commission of the offense. The persons keeping watch and the persons doing, or endeavoring to do, the acts and things men*129tioned in Article 76, are the only persons who are principals when not present at the commission of the unlawful act.
It is of course understood that the party, or parties mentioned in Article 77 are principals, though not present, for they must of necessity be principals. An accomplice presupposes a principal offender, and can not exist without such.
I find, therefore, that our code specially enumerates the acts to be done, and the exact time, with reference to the main act at which they are to be done or endeavored, which constitute the actors principals; and it is evident that those performing the specified acts, and the actual perpetrators of the crime, in one sense are guilty of acting together in the commission of the crime. This being the case, if those who are present with knowledge of the unlawful intent, aid, etc., or, not being present, keep watch, or, not being present, are guilty of the acts specified in Article 76, are included in Article 74 because acting together, then I ask why enumerate at all ?
I therefore conclude that the following persons are principals:
First. They who are guilty of acting together—the actual absolute perpetrators of the crime—in the commission of an offense. (Art. 74.)
Second. Those who are present, with knowledge of the unlawful intent, aid by acts, or encourage by words or gestures, the actual, absolute perpetrators of the crime, in the commission of the offense. (Art. 75.)
Third. Those who, not actually present, keep watch so as to prevent the interruption of those engaged in committing the offense. (Art. 75.)
Fourth. All who, whether present or absent, engage in procuring aid, arms, or means of any kind, to assist in the commission of the offense, while others—the perpetrators—are executing the unlawful act. (Art. 76.)
Fifth. Persons, whether present or absent, who endeavor at the time of the commission of the offense, to secure the safety or concealment of the offenders. (Art. 76.)
Sixth. All who advise or agree to the commission of an offense, whether they aid or encourage those actually engaged in the commission of the offense or not, if present, are principals. (Art. 78.)
I will not at this point treat of the principals mentioned in Article 77, but will notice them before I conclude.
The writer has agreed to and expressed views, which will be *130found in the opinions of this court, at variance with the doctrine here stated; but, after a more thorough ■ investigation of the subject, I have come to the conclusion that the views here expressed are correct, and that those elsewhere expressed are wrong.
Applying the rules here stated to the facts of this case, was there any evidence tending to show appellant as principal in the offense charged? Is there the slightest fact, even presumed from other facts, to show that defendant, M. M. Smith, either kept watch, engaged in procuring aid, arms, or means of any kind, to assist in the commission of the theft; or that, at the time of the commission of the offense, he endeavored to secure the safety or concealment of the offenders? Hone whatever. It is conceded that he was not present, but at home, some forty or fifty miles from the place of the theft.
But let us concede that my views as to what is necessary to constitute a party a principal, are wrong, and that the doing of other acts besides those mentioned in the code may make the actor a principal, and that our opinions on this subject are correct when viewed with relation to the facts of each particular case, still the question occurs, are there any facts in this record which bring the appellant within the rule announced by this court in any case holding him a principal? Are there facts in this case which make or tend to constitute appellant a principal under the rules stated in any case upon this subject? If there be, I have not been able to discover them.
As before stated, the theory of this prosecution is that M. M. Smith conspired with others to steal the cattle, and that Jim and Dave Smith, and perhaps others, went to Erath county, took and drove the cattle to Parker county, and there delivered them to appellant; that Jim and Dave Smith and the others were co-conspirators with appellant, and that they were the guilty takers, the actual captors, while appellant at the time of the taking was engaged in the doing of some act in aid of those actually engaged in the taking; and hence that appellant was a principal. Let us concede this; still there must be proof to sustain this theory. The State, however, failed to make proof of the last mentioned proposition, to-wit, that appellant was, at the time of the taking, rendering aid or assistance to those engaged in the fraudulent taking. Upon this theory, therefore, the State has failed to make out its case.
Is there another theory, depending upon the guilt or innocence *131of the actual takers of the cattle, presented by the facts, upon which the appellant might have been legally convicted if it had been presented to the jury by proper instructions? 1 think so. I stated, supra, that I would notice Article 77, bearing upon the subject of principals. Now let us suppose that M. M. Smith, intending and contriving to deprive the owners of the cattle in question, and to appropriate them or their value to his own use, induced Jim and Dave Smith, or others, to believe that the cattle were his property, and so believing, they or either of them went to Erath county, as the employes of M. M., and honestly and in good faith took the cattle as the property of M. M. Smith. Would M. M. Smith be an accomplice in this transaction? By no means, for there can be no accomplice without a principal offender. An accomplice necessarily presupposes that there is a principal—at common law, a superior. (4 Bl. Com., 34.) Sir William Blackstone upon this subject says that if a person, by laying a trap or pitfall for another, whereby he is killed, or letting out a wild beast with intent to do mischief, or inciting a madman to commit murder, so that death therefrom ensues, that in every such case the party thus offending is a principal in the first degree. “For,” says he, “he can not be called an accessory (accomplice); that necessarily presupposes a principal.”
But under our statute is a party employing an innocent person —innocent of the guilty purpose of the employer—though such person be subject to punishment, be of sound mind and discretion, be of years of maturity, and liable to be punished to the full extent of the law—liable as a principal offender? That such a person is a thief there can be no doubt, and if a thief, evidently he is the principal, there being no other guilty party to the transaction. If the trap, the pitfall, the wild beast, or the madman be the instruments of death—the means used by the murderer to commit the murder, etc.—may not a rational, responsible person also be the innocent means of others, through, or by whom, crime, can be committed?
Article 77 provides that if any one, by employing a child, or other person who cannot be punished, to commit an offense, or by any means, such as laying poison where it may be taken, * * * or by any other indirect means, cause another to receive an injury to his person or property, the offender by the use of such means becomes a principal. It is remarkable that in treating of a person as the means, Blackstone names a madman, and our statute a child or a person who cannot be punished, and this *132fact misled the writer in Lott’s case, decided at this term of the court. (20 Texas Ct. App., 230.) However, after a more thorough investigation of the subject, I reach the conclusion that, if a person employs a perfectly responsible man or person to commit acts constituting crimes, and that the person employed is ignorant of the unlawful intent (in this case the fraudulent intent), the person so employing such party is guilty of the offense—guilty of the acts committed by his innocent agent; that such person is merely the instrument used by the guilty party—the employer—and that the acts of such innocent agent are the acts of the principal. Hence, if Jim Smith and Dave Smith took the cattle, honestly believing them to be M. M. Smith’s, without knowledge of his thievish intent, they would not be guilty, but M. M. Smith would be. Jim and Dave would in such case be the means resorted to, the instruments used by M. M., and their acts would be his acts.
Again: In such case M. M. would be a principal necessarily, but if Jim and Dave were guilty co-conspirators with M. M., he, having advised, commanded, or employed them to commit the offense, and not being present, would at common law be an accessory before the fact, and under our code an accomplice. Upon this subject Mr. Bishop says: “Innocent Agent—Such an agent is one who does the forbidden thing, moved thereto by another person, yet incurs no legal guilt, because either not endowed with sufficient mental capacity, or not made acquainted with the necessary facts.” (1 Crim. Law, sec. 310.)
“To be a principal he need not be present at the perpetration of the wrong. Thus a dose of poison, or an animate object like a human being, with or without general accountability, may produce death or other injury in the absence of him whose will set the force in motion, and in such a case the absent person is a principal, whenever the immediate actor is not guilty in the particular transaction. If the immediate actor is guilty, the other, being absent, is only an accessory.” (Id., 651.)
It will be seen from these questions that if the instrument be a person (though subject to punishment; competent in every respect to commit the offense if he has knowledge of the guilty intent of his employer) who is innocent, who acts in ignorance of his employer’s guilty purpose and design; the employer, his principal,.would be guilty, the agent’s acts being his acts. He is guilty not as an accomplice, but as principal offender. If, however, his agent is a co-conspirator, has knowledge of his em-*133plover’s felonious or fraudulent intent, lie, the agent, becomes the principal, and the employer the accomplice, unless the employer be a principal by reason of some other of the provisions which are discussed supra.
To condense:—If A., intending to fraudulently deprive B. of his stock, and to appropriate the same or its value to his own use and benefit, employs C. to take such stock, C., being ignorant of A.’s fraudulent intent, and hence innocent of a fraudulent taking, and 0. takes said stock from the possession of B., A. would be guilty of the theft of such stock, and be guilty as a principal. But if C. has knowledge of A.’s fraudulent intent, and takes the stock, 0. would be guilty of the theft as principal, and A., not being present, would be guilty of the theft as an accomplice, these being all the facts bearing on the question of principal vel non.
These propositions render the insertion of a count charging M. M. Smith as an accomplice of the highest importance, for, if Jim and Dave be guilty, M. M., under the facts, is an accomplice. If they are innocent, M. M. may be guilty as a principal.
Now, in this case M. M. Smith has been convicted as a principal, with Jim and Dave Smith as the guilty takers, without evidence that M. M. was doing anything at all in aid of the taking. This is erroneous; for the theory that Jim and Dave may- have been innocent agents, and that M. M. used them as the means or instruments by which to accomplish the theft, was not submitted to the jury.
Affirmed.
Opinion delivered March 23, 1886.