Appellant was convicted of the offense of kidnapping C. L. Kirby for the purpose of removing him out of the State, and the jury assessed a penalty of five years in the penitentiary, hence this appeal.
The facts show that appellant was an inmate of the State Training School at Gatesville, Texas. That a companion inmate named "Bulldog" Reynolds had possessed himself of a pistol, and at nighttime, by means of a ruse, Mr. Kirby, who was an attendant in the dormitory where the boys were sleeping, was caused to open the door to the dormitory, whereupon the boy Reynolds presented this pistol, and by means thereof he caused the attendant to open the door, and then to go down the hall where appellant was sleeping. Reynolds awakened appellant and said "Let's get going." The two boys then took Kirby out *Page 370 in a field, meanwhile threatening him with the pistol, and eventually they made connections with some four other boys on the road who were in an automobile, and then began a flight all over the State. The car contained other firearms, which were used threateningly towards Kirby in many instances. When requested by Kirby to release him the boys told him that they were taking him with them as protection against any officers shooting at them; that they intended to keep him until they got to the State of Louisiana or Arkansas. After having gone into Waco, Corsicana and probably Tyler, they came near to Malakoff, and they there decided to tie Kirby up with wire, gag him and knock him insensible and proceed on their journey out of the State. Kirby finally talked them out of beating him, but they did tie him up with wire, and left him gagged. They were afterwards captured near Marshall in Harrison County, near the Louisiana border.
Appellant's first complaint is found in his bill of exceptions No. 1, which is based on an endeavor upon the part of his mother to get the county attorney to agree to prosecute this appellant as a delinquent child in the juvenile court. It is deducible from the testimony that appellant was already an inmate of the State Training School as a delinquent child; that this offense was committed by him, if at all, on April 28, 1939; that his mother appeared before the county attorney of Coryell County on May 6, 1939, and merely made the request that appellant be proceeded against as a delinquent child, stating in such conversation that appellant would not be seventeen years old until May 9, 1939, or three days thereafter. The county attorney told her that he intended to present this matter to the grand jury which met on July 10, 1939. It is appellant's contention that it was obligatory upon the attorney's part to immediately proceed against appellant as a juvenile.
The county attorney could not, under the statute, make an admission as to the age of the appellant. See Art. 1086, C. C. P., but proof of the same should be made to the satisfaction of the court. The mother presented him with no affidavit setting forth such age, nor other proof than her mere statement that her son lacked three days of being seventeen years of age, but contended herself merely with such oral statement. Unquestionably the charged offense was a serious one, a felony, and the testimony evidenced shrewd preparation and the contemplation of other and more serious crimes upon the part of appellant and his companions. *Page 371
The law contemplates as controlling in such matters the age of the accused at the time of the trial, not his age at the time of the offense, and we do not think that the county attorney's refusal to rush into an immediate trial within less than three days evidences an unfair attitude upon his part. In the case of McLaren v. State, 85 Tex.Crim. Rep., 209 S.W. Rep. 669, the appellant had been first tried for the murder of his father while he was only sixteen years of age which first case was reversed by this court on that ground, the court holding that he should have been proceeded against as a juvenile. See McLaren v. State, 82 Tex.Crim. Rep.. Upon the reversal of this case the accused had reached the age of seventeen years, and he was again put upon his trial for murder under the authority of Arrendell v. State, 60 Tex. Crim. 350, 131 S.W. Rep. 1096, and although the offense was charged to have been committed on a date which showed the accused was under the age of seventeen years, nevertheless it was held that the age of the accused at the time of the trial and not at the time of the commission of the offense was that which governed in regard to his juvenility. McLaren v. State, 85 Tex. Crim. 31, 209 S.W. Rep. 669; also see Watson v. State,90 Tex. Crim. 576, 237 S.W. Rep. 298; Walker v. State,119 Tex. Crim. 330, 45 S.W.2d 987; Stallings v. State, 87 S.W.2d 255. We have no doubt of the correctness of this doctrine, and this bill is overruled.
Bill of exceptions No. 2 is practically to the same effect as Bill No. 1, and is also overruled.
Bill of exceptions No. 3 relates to the refusal of a peremptory instruction, and is overruled.
Appellant complains because of the court's failure to charge on the law of circumstantial evidence. It seems to us that such a charge was not demanded herein. The testimony as to the forced taking of Kirby, of course, was direct; the portion of the offense charged and necessary to be proven was that relative to taking Kirby out of the State. The proof thereof could only lie in the minds of appellant and his companions, and in this instance is not dependent upon circumstances, but comes from them direct. They told Kirby, when asked by him to be released:
" 'No, we will put you out about this time tomorrow night in Louisiana or Arkansas, and we are going to hold you until we get you out of the State. * * *' Reynolds said 'as long as we have got you in here we have protection from the law. When they find out that you are with us they are never going to shoot *Page 372 in on us while you are with us.' * * * I asked them there (at Waco) to let me go, and they said 'No,' they were going to take me along until they got out of the State. * * * They said they were going into Louisiana or Arkansas."
"They told me that they were carrying me for protection. And trying to make their escape from the Juvenile Training School. That is what they said. That is what Bulldog told me and Ernie too. Ernie had said nothing to me until they took him out of the cell. They told me that they were going to carry me either to Louisiana or Arkansas when I was trying to get them to let me go. They said either to Louisiana or into Arkansas. They talked about them both.
"I don't know whether it was the particular highway that leads to Louisiana, but they could follow this highway to that State. I am not familiar with the highways. I would have to look at the map. They released me at Malakoff. They had a map that night. There is one highway turns north and goes to Arkansas and one goes ahead to Louisiana. We could go either way."
After traveling all day, at times appellant guarding Kirby with a shotgun, and at times others guarding him, — they eventually got their car stuck in a hollow, and at such place seemed to have decided to bind Kirby and tie him to a tree with wire, gag him and beat him into insensibility and leave him there unconscious, and proceed on their contemplated journey. These boys were later arrested on April 28, 1939, on Highway 80, which is called Texas and Louisiana Highway, which goes to Shreveport, Louisiana, near the town of Marshall, in Harrison County. They still had a pistol, a shotgun and a rifle with them.
We think there is direct testimony to show that these boys intended to take Mr. Kirby out of the State, and that they were afraid to leave him because of the fear of his giving the alarm and their resultant capture. Why they changed their minds we do not know, but we have their own statements of what they intended to do, and it was not necessary to resort to circumstances to thus show. We overrule this contention.
Appellant's next contention seems to be that he, if guilty of any criminal act, could only be guilty as an accessory after the fact, basing his argument on the fact that "Bulldog" Reynolds took the man Kirby in his custody and liberated appellant, and this offense of kidnapping was at such time initiated by Reynolds alone. The court charged on the law of principals, and the testimony showed that appellant immediately upon being *Page 373 liberated entered into the conspiracy which evidenced itself herein by the careful preparation made beforehand; that appellant possessed himself of a shotgun, and made Kirby lie down and hide; again he made him march down the road, and stood guard over him, and "restrained Kirby from moving from one place to another" as charged in the indictment. Mr. Branch says in his Penal Code, p. 352, Sec. 693: "It makes no difference at what time one enters into a conspiracy to commit a crime; every one who enters into the common purpose and design is generally deemed a party to the act which has been done before by the others and to every other which may be done by any of the others before the termination of the conspiracy in furtherance of the common design," citing many cases.
Appellant complains because he says the court should have charged the jury that if it was the purpose of the kidnapping to enlarge the two boys from their confinement in the State Training School, that such a defense should have been submitted to the jury in the court's charge on the converse of the law of principals. Such a purpose may have been primarily the one that actuated these boys, but accompanying such purpose and in order to effectuate it, from their testimony, we gather, there seemed to have arisen the necessity of taking Kirby out of the State in order that he might not inform upon them until they had accomplished their purpose of fleeing from the State. We do not think such a defense had presented itself in these facts.
There are other contentions advanced by appellant in his brief relative to the court's charge, and based upon the premise that appellant was asleep when the witness Kirby was first captured by "Bulldog" Reynolds, and therefore that he could not be guilty of the offense of kidnapping. As observed above, however, we think an answer to such contention is that if a person enters into a conspiracy after its formation, and participates in the carrying out of the common design, that he adopts all previous acts of his coconspirators. See Branch's Penal Code, supra.
We have considered all of appellant's contentions set forth in his brief and the record, and find no error reflected therein.
The judgment is affirmed.
MOTION FOR REHEARING.