Bragg v. State (166 S.W. 162, 1914)

PBENDEBGAST, P. J.

Appellant was convicted as an accomplice to swindling, and his punishment assessed at two years in the penitentiary—the lowest prescribed by law.

The evidence was amply sufficient to sustain the conviction. The case was tried in October, 1913. The appellant complains in some particulars of the court’s charge. His first is,' in effect, that the court failed to charge specially that in order to convict him as an accomplice the evidence must be sufficient to convict the principal as principal. It must be borne in mind that it was the accomplice and not the principal on trial. The court in his charge to which there is no complaint first stated substantially but succinctly the allegations in the indictment, then told the jury all of the requisites necessary for the state to establish before they were authorized to convict. Following this, in submitting the case to the jury for a finding, he required the jury to believe beyond a reasonable doubt' everything necessary and proper under the law and the indictment for them to believe, before they could convict, and, if they found all of these things beyond a reasonable doubt, then to convict. In this charge not only did he require them to believe beyond a reasonable doubt everything essential to show the principal’s guilt as principal, but also the appellant’s as an accomplice.

The court, in his charge, required the jury to believe, beyond a reasonable doubt, as the statute requires that in order to convict him as an accomplice they must believe that he did unlawfully and willfully and fraudulently advise, command, and encourage the principal to do and commit said swindling, and that he was not personally present when the swindling, if any, was committed, before they could convict him. It is not the law and was not necessary for the court to charge, as contended by appellant, that in order to make him guilty as an accomplice the jury must believe beyond a reasonable doubt that he and the principal entered into an agreement to commit the offense of swindling. The law and the statute does not require that he shall enter into any such agreement, but it only requires, in order to make him an accomplice, that before the act is done he advised, commanded, or encouraged the principal to commit the offense of swindling.

Appellant complains by his motion for new trial only that the court had the verdict of the jury corrected before he would receive it. Nothing is shown by any bill of exception on this subject, and we cannot review such matter stated only in the motion for new trial. It must be shown by bill of exception.

As stated above, this cause was tried in October, 1913—some time after the Act of April 5, 1913, p. 278, amending articles 735, 737, and 743, and adding 737a, were in force. The court correctly told the jury that if they found appellant guilty .and the value of the property of which the complaining witness had' been swindled was worth more than $50 to assess his punishment in the penitentiary at any term of years not less than two nor more than ten. This is the penalty prescribed by law. Appellant in no way complained of this at or before the trial. For the first time in his motion for new trial he complained that the court should have given the punishment prescribed by article 84, Pen. Code 1911. That article is: “If the accomplice stands in the relation of parent, master, guardian or husband to the principal offender, he shall, in all such cases, receive the highest punishment affixed to the offense, and the same may, in felonies less than capital, be increased by the jury to double the highest penalty which would be suffered in ordinary cases.” That article of the statute is inapplicable to the offense alleged in this ease. The indictment did not allege that the appellant stood in the 'relation of parent to the principal offender. This it is necessary to állége in the indictment before this article 'of' the statute is applicable. Section 107, White’s Ann. P. C.; Wilson’s Form No. 739 (4th Ed.). Besides this, under the amended articles of the Procedure by said Act of April 5,1913, it was too late to first make this complaint of the court’s charge after the trial was concluded. Barnett v. State, 42 Tex. Cr. R. 302, 62 S. W. 765; Manning v. State, 46 Tex. Cr. R. 326, 81 S. W. 957, 3 Ann. Cas. 867, and cases cited; Knight v. State, 64 Tex. Cr. R. 569, 570, 578, 579, 144 S. W. 967, and cases therein cited; Bills v. State, 55 Tex. Cr. R. 543, 117 S. W. 835; Williams v. State, 53 Tex. Cr. R. 399, 110 S. W. 63; Robbins v. State, 57 Tex. Cr. R. 8, 121 S. W. 504; Reyes v. State, 51 Tex. Cr. R. 420, 102 S. W. 421; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Work v. State, 3 Tex. App. 233; Gantt v. State, 105 S. W. 800.

Again, the court’s failure to authorize the higher penalty, even if said article 84, P. O. 1911, had been applicable, was clearly in appellant’s favor and not against him, and he cannot justly complain on that account. Jones v. State, 63 Tex. Cr. R. 413, 141 S. W. 953, and authorities there cited; Coker v. State, 160 S. W. 368.

As stated above, the evidence is amply sufficient to sustain the verdict. In fact, it occurs to us of the evidence in this case, as said by Judge Hurt of the evidence in Graham v. State, 28 Tex. App. 11, 11 S. W. 782, 19 Am. St. Rep. 809, “no honest jury under such proof could do otherwise than convict.”

The judgment is affirmed.