This case was affirmed at a former day of this term, and it is now before us on motion for rehearing. On original submission there was no brief filed by appellant (without, however, as subsequently shown, his fault or his counsel's), so the investigation of the case made by the court was without the aid of any explanation or discussion on his behalf.
We seemed clearly to have overlooked one of the most important, perhaps the controlling, question in the case. That question is with reference to the charge of the court as to who are principals. If it were important to do so we might give some reasonable excuse for our error in the fact that the ground of the motion raising this question seems to emphasize the action of the court in giving a charge on principals at all. This same question and supposed error is also pointed out in appellant's bill of exception No. 5. But after all is said the question now raised, that is, that the charge of the court on the doctrine of principals is erroneous, is clearly raised in appellant's seventh assignment of error. So we have no doubt that a court whose principal office it is to point out and correct the errors of others, should in all faithfulness and candor openly acknowledge its own.
The charge of the court complained of is as follows: "All persons are principals who are guilty of acting together in the commission of an offense. When an offense has been actually committed by one or more persons, the criterion for determining who are principals is, did the parties act together in the commission of the offense? was the act done in pursuance of a common intent and in pursuance of a previously formed design in which the minds of all united and concurred? If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in the execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground when the offense was actually committed, or not." This precise charge has not infrequently been condemned by us. The most recent cases are *Page 501 those cited by appellant: Yates v. State, 42 S.W. Rep., 296; McDonald v. State, 46 Tex.Crim. Rep., 79 S.W. Rep., 542, and Criner v. State, 41 Tex.Crim. Rep..
In the Yates case we said: "We have heretofore discussed this charge as defining who are principals, and it is not necessary here to reiterate what was then said. See Dawson v. State, 41 S.W. Rep., 599. In our opinion, as therein expressed, said charge does not contain a correct definition as to who are principals. According to the testimony in this case, the charge in question was calculated to injure defendant's rights, inasmuch as there was no positive testimony connecting him with the original taking, and the prosecution depended wholly upon circumstantial evidence; and the circumstances in proof were all of subsequent acts and conduct of the defendant, and agreed as well, and indeed more strongly with the theory that he was not present at the time of the taking." In the case at bar there was no direct testimony of the presence of appellant at the time the animal was either taken or killed, but his connection with the original taking was sought to be established by acts and conduct occurring soon thereafter as well as by his possession of part of the stolen property. So that we think it is obvious that this charge was not only under the authorities erroneous, but must have been seriously injurious and hurtful to appellant's case. The principle upon which the objection to this charge rests is to our minds best stated in the case of Bean v. State, 17 Texas Crim. App., 60, quoted by Judge Brooks approvingly in the case of Dawson v. State, supra. The court in the Bean case say: "The dividing line between the two is the commencement of the commission of the principal offense. If the parties acted together in the commission of the offense they are principals. If they agreed to commit the offense together, but did not act together in its commission, the one who actually committed it is the principal, while the other, who was not present at the commission, and who was not in any way aiding in its commission, as by keeping watch, or by securing the safety or concealment of the principal would be an accomplice. To constitute a principal, the offender must either be present where the crime is committed, or he must do some act during the time when the offense is being committed which connects him with the act of commission in some of the ways named in the statute. Where the acts committed occur prior to the commission of the principal offense, or subsequent thereto, and are independent of and disconnected with the actual commission of the principal offense, and no act is done by the party during the commission of the principal offense in aid thereof, such party is not a principal offender, but is an accomplice or an accessory according to the facts."
As a necessary deduction and corollary of what we have said above it is evident that the court should have submitted to the jury the issue and question as to whether under the facts appellant was an *Page 502 accessory, accomplice or receiver of stolen property. See McAlister v. State, 45 Tex.Crim. Rep.; Criner v. State,41 Tex. Crim. 290. The facts in the McAlister case, supra, were not unlike those here, and in disposing of that case, Judge Davidson says: "Appellant introduced evidence showing, if the mules were taken by the accomplice Hughes, that he was not only not present, but had no knowledge of the intended theft on the part of Hughes. The issue was also presented that Hughes committed the theft and appellant may have been an accomplice by advising, aiding, etc., Hughes thereby rendering himself an accomplice to the crime. The court submitted the issue of principals under both counts. Error is assigned because the jury were not instructed that if he was only an accomplice to the crime he should have been acquitted under the indictment. Upon another trial this phase of the law should be given, because if he advised Hughes to take the property and Hughes did in fact take it and appellant was not present at the time of the taking nor aided in any way to the original taking, he could not be subject to conviction under this indictment, because it charges him with being a principal." In this case there is, as we have stated, no positive proof that appellant was concerned in the original taking of the animal in question. His connection with the theft after the animal was killed, is shown by what seems to us strong testimony, and from the facts the jury might be justified in believing, and the issue is distinctly made in view of appellant's proof of alibi and denial of any connection with any theft at all, that he was not more, under the law and facts, than an accomplice, accessory or receiver of stolen property. This issue being raised by the evidence, the court should have instructed with reference to it. On fuller consideration it is clear to our minds that the objections now made to the court's charge must be sustained.
It is accordingly ordered that the motion be and the same is hereby granted and the judgment of conviction set aside, and the cause remanded for another trial.
Reversed and remanded.
[State's motion for rehearing denied March 17, 1909. — Reporter.]