Full opinion text
BROOKS, Judge. Appellant was convicted as accessory to murder, and his punishment assessed at confinement in the penitentiary for life. The record shows that in November, 1894, in Hemphill County, Texas, one Tom T. McGee was killed. A short time after the killing George Isaacs was arrested, and incarcerated in jail, charged with being an accomplice to the murder of McGee. Subsequently he was indicted by the grand jury of Hemphill County, the indictment charging him as a principal and as an accomplice with Jim Harbolt and Joe Blake in the killing of McGee, and as an accomplice to persons to the grand jury unknown in the killing of McGee. In October, 1895, on a change of venue to Hardeman County, Isaacs was tried and convicted, the jury returning a general verdict finding him guilty of murder as charged in the indictment, without determining whether they found him guilty as principal or as an accomplice, assessing his punishment at confinement in the penitentiary for life. The evidence upon the trial of Isaacs showed that at the time of the homicide Isaacs was not present and participating in the same, but that his connection was as a party to the conspiracy between himself and the above-mentioned parties, and probably others, to hold up and rob a train at Canadian, Texas, the scene of the homicide; and in the attempted perpetration of said robbery McGee was killed. For a further and more detailed statement of the evidence on the trial of Isaacs, see Isaacs v. State, 36 Texas Criminal Reports, 505. After the conviction of Isaacs, he was duly sentenced and incarcerated in the State penitentiary at Rusk, Texas. About the 27th day of September, 1899, a pardon was received at the Rusk penitentiary, by the authority of which George Isaacs was released from the penitentiary. The evidence shows that appellant, Dent, forged the.pardon, which forgery shows intimate knowledge on part of appellant of Isaacs’ guilt. The indictment for accessory to murder is predicated upon the foregoing state of facts, in that by said forged pardon appellant aided Isaacs to evade the execution of his sentence. Appellant presented the following motion to quash the indictment: “Defendant excepts to the indictment filed against him, and says the same charges him with no offense against the laws of the State. Defendant specially excepts to the first count in said indictment because the same does not charge any act that was done by defendant or any means used by defendant in the perpetration of any offense. Nor does it set out any means used by defendant in assisting or aiding the said George Isaacs. In fact, said count of the indictment does not allege any facts, matters, circumstances, act, or anything else to give notice to this defendant of what was expected to be proved against this defendant by the State.” Appellant’s main insistence seems to be that the first count of the indictment is defective, in that it does not charge any act done by defendant or any means used by defendant in the perpetration of any offense. An indictment similar to the first count here has been held good in Gann v. State, 42 Texas Criminal Reports, 133, and, without further discussion of the matter, we refer to that case. We think the count is good. Even conceding the first count is insufficient, yet in view of "the fact that the verdict of the jury against appellant is general, and that the second count does specifically state the means used by appellant in aiding his principal, George Isaacs, to evade the execution of his punishment, the supposed error becomes harmless. Pitner v. State, 37 Texas Crim. Rep., 272; Henderson v. State, 2 Texas Crim. App., 88; Southern v. State, 34 Texas Crim. Rep., 144. Appellant’s next contention in his able brief is based upon his seventh bill of exceptions, to wit: “The court erred in admitting in evidence the certified copy of a judgment of conviction of murder in the first degree in cause No. 334 (State of Texas v. George Isaacs), from the District Court of Hardeman County. The district attorney announced this copy of judgment was introduced for the purpose of proving the guilt of George Isaacs of the murder of Tom T. McGee, as charged in the indictment against defendant, Dent. Appellant contends that, if said judgment was admissible at all, it could only be for the purpose of proving George Isaacs, the principal, had been tried and convicted, in order to comply with article 90, Penal Code, and was clearly inadmissible, and in violation of section 10 of the bill of rights and the sixth amendment to the Constitution of the United States.” To support appellant’s position, he cites ns to Cline v. State, 36 Texas Criminal Reports, 320, and to Kirby v. United States, 174 United States, 47, 19 Supreme Court, 574, 43 Lawyers’ Edition, 890. We do not think the case of Cline v. State, supra, is at all in point on the question here involved. In Kirby’s case, supra, the court was considering the following matter: Under the act of Congress of March 3, 1875, it is provided, where one is convicted of feloniously stealing stamps and carrying them away from the postoffice, and upon a subsequent trial of a third party for receiving said stamps, the judgment of conviction of the principal shall be conclusive evidence against said receiver that the property of the United States therein described had been embezzled, stolen, and purloined. Justice Harlan, delivering the opinion of the court, held that the provisions of the statute violated the clause of the Constitution of the United States which declares that in all criminal prosecutions the accused shall be confronted with the witnesses against him. By the facts it appears that Wallace, Baxter, and King (the first ■two upon pleas of guilty, and the last upon trial) had been adjudged guilty of the theft of stamps from the United States postoffice. In the trial of Kirby for receiving said stolen property the judgments against the three first-named parties were introduced in evidence under the terms of the above quoted statute. Justice Harlan said: "As heretofore stated, the crime charged against Wallace, Baxter, and King, and the crime charged against Kirby were wholly distinct; none the less so because in each case it was essential that the government should prove that the property described was actually stolen. The record of proof of a vital fact in one prosecution could not be taken as proof in the other of the existence of the same fact. The difficulty was not met when the trial court failed, as required by the Act of 1875, to instruct the jury that the record of the conviction of the principal felons was conclusive evidence of the fact that the property had been actually stolen, but merely said that such record made a prima facie case as to such fact. The fundamental error in the trial below was to admit in evidence the record of the conviction of the principal felons as competent proof for any purpose. That those persons had been convicted was a fact not necessary to be established in the case against the alleged receiver; for, under the statute, he could be prosecuted even if the principal felons had not been tried or indicted.” From the excerpt quoted, and after a careful perusal of the entire opinion, it will appear that the Kirby case is not in point upon the question here at issue, since, as said by Justice Harlan, one can be convicted of receiving stolen property before indictment or conviction of the thief. We see another distinction between the Kirby case and the one at bar in this: The judgment of conviction of the thief would be evidence solely of the fact that Wallace, Baxter, and King had stolen some stamps; but said judgment, after its introduction, would not be any evidence going to show that the stamps so stolen by them were the stamps that Kirby was alleged to have received, knowing them to have been stolen. But in the case at bar, if Isaacs killed McGee, the judgment adjudges him guilty of that offense, and the evidence in this case shows appellant aided Isaacs to escape the execution of his sentence for the murder of McGee. We do not understand that the Supreme Court of the United States in the Kirby Case, supra, were passing upon the ordinary doctrine of accessory after the fact, or the character and kind of proof necessary to make out a conviction of the accessory. The receiver of stolen property is not an accessory, as ordinarily understood, since the guilt of the receiver does not depend in any sense upon the guilt or conviction of the thief. Be this as it may, if Kirby’s case be correct, that the judgment of conviction of the principal in the trial of an accessory is not admissible for any purpose, as a casual reading of the decision might indicate, then we say that said authority is so at variance with the long line of precedents on the subject that we can not follow it. We do not think the decision in the Kirby case, supra, applies to the introduction of the judgment against Isaacs in this case. We think the question considered by the court in the Kirby case is altogether at variance with the question before us in this case. Appellant concedes in his argument that the judgment is admissible for the purpose of showing that Isaacs, the principal, has been tried and convicted in order to comply with article 90, Penal Code. We apprehend appellant would further concede the judgment was admissible as a predicate for a charge on the part of the trial court as to the punishment that should be inflicted upon the accessory after the fact, since article 88, Penal Code, provides: “Accessories to offense shall be punished by the infliction of the lowest penalty to which the principal in the offense would be liable.” Now, if the principal has not been convicted, it is proper to introduce testimony showing the guilt of the principal as a predicate for the prosecution of the accessory after the fact, as was properly held by us in Poston v. State, 12 Texas Criminal Appeals, 409. And here we will remark that appellant seems to rely with some degree of strenuousness upon this case as authority -for his position here. The principal in the Poston case had never been convicted, so far as the record shows, and certainly then the facts would be admissible going to show the guilt of the principal in a proper prosecution of the accessory. Then the sentence of the principal, as stated above, would be admissible, as a predicate upon which the trial court would base a charge as to the amount of punishment to be inflicted by the jury upon the accessory. This fact is made apparent by the following statement: If the principal has been acquitted, the accessory can not be prosecuted. If the principal has been acquitted of either degree of homicide, or both of the higher degrees, to wit, murder in the first and second degrees, and convicted of manslaughter, then we take it that the accessory could be convicted of no higher degree of offense than the principal had been convicted. Therefore, although the evidence upon the trial of the case might show that the principal was guilty of a higher grade of offense than he had previously been convicted of, yet appellant would be entitled to a charge from the court telling the jury that they could not convict him of a higher grade of offense than the principal had been convicted. We therefore hold that the judgment was admissible in order to show the conviction of the principal as authorized by article 90, and also as a predicate for the charge or the part of the trial court, as we construe article 88, Penal Code. If this were an original question, we would hold, as ably contended by the State, and as charged by the trial court, that the verdict of the jury and judgment and sentence of the District Court of Hardeman County are conclusive proof of the guilt of Isaacs of the murder of Tom T. McGee. But we have searched in vain for authority supporting this position. In Broxton v. State, 9 Texas Criminal Appeals, 97, we held, where the court below instructed the jury that a certain indictment and capias put in evidence by the State were sufficient proof to establish the allegation contained in the indictment that P. A. Lattimore, the person described in said indictment and capias, was confined on an accusation of felony, was a correct charge, and not on the weight of the evidence, and was a proper explanation of the legal effect of the records of the court. In this case appellant appears to have been prosecuted for prison breach, and we merely cite same as authority supporting the proposition that it is the imperative duty of the trial court to give the jury a rule as to the probative force of judgments and sentences in cases of this character. In Arnold v. State, 9 Texas Criminal Appeals, 438, we used the following language: “The principals not being tried and convicted, so that the record of their conviction could be introduced to establish their guilt, the State was required to prove their guilt in the same manner and to the same certainty as if they themselves had been upon trial, for their guilt must be shown before the accomplice can be legally convicted.” We think the inference from the latter case is thoroughly fortified by reason, and is in strict line and consonance with the proper presentation of the evidence going to show the accessory’s guilt. If the principal has not been convicted prior' to the conviction of the accessory, when evidence is introduced to prove the principal’s guilt in the trial of the accessory it is to demonstrate but one fact,—not any culpability on the part of the accessory in the original crime, but simply and solely to prove the guilt of the principal, and from said guilt to erect one circumstance going to show the accessory’s guilt, which alone is predicated upon knowledge of the guilt of the principal. This knowledge, as contemplated by article 86, Penal Code, does not carry with it the idea of full, perfect, and absolute consciousness of all the salient features of the evidence going to show the principal’s guilt. But, as stated above, this is not now an original question. The courts of last resort all over the Hnited States have held that the judgment of conviction of the principal upon the trial of the accessory is merely prima facie evidence of the guilt of the principal; and that said judgment, although admissible in the trial of the accessory, may be combated by evidence on the part of the accessory, and the absolute innocence of the principal demonstrated, and ultimate thereby in the acquittal of the accessory. 1 Rosc. Crim. Ev., p. 279; Whart. Crim. Ev., 519, 602; 2 Bish. Crim. Proc. sec. 12; 1 Bish. Crim. Law, secs. 667, 668; 1 Am. and Eng. Enc. of Law, 270; Lynes v. State, 36 Miss., 617; Anderson v. State, 63 Ga., 675; State v. Mosley, 31 Kan., 355, 2 Pac. Rep., 782; State v. Chittem, 2 Dev. Law, 49; Commonwealth v. Knapp, 10 Pick., 477, 20 Am. Dec., 534; Baxter v. People, 7 Ill., 578; People v. Buckland, 13 Wend., 592; Levy v. People, 80 N. Y., 327; People v. Gray, 25 Wend., 465; Keithler v. State, 10 Smedes & M., 192; State v. Crank, 23 Am. Dec., 117; State v. Duncan, 6 Ired., 98. Then, in conclusion upon this matter, we will say that a judgment and conviction of Ishacs makes out a prima facie case as to the guilt of said Isaacs under the above-cited authorities; and the only remaining question to be considered is whether or not appellant is guilty, knowing that an offense has been committed, of aiding said Isaacs to escape the execution of his sentence. In the case of Tully v. Commonwealth, 13 Bush, 143, the court said: "It is sufficient that appellant has good reason to believe Osborne was guilty of the murder charged, and was fleeing from justice, to render the aid or comfort given himvunlawful. It was not necessary to prove that he had actual knowledge of these facts.” Nor do we think it necessary for the accessory after the fact to have absolute knowledge or actual knowledge of all the facts going-to show the criminality of Isaacs. If so, then the State in this case would be without evidence upon which to base a valid prosecution. Isaacs was tried, convicted, and sentenced, and incarcerated in the penitentiary long before the record shows any knowledge on the part of defendant, Dent, of said facts. Then, is it possible to say that the rules of evidence require the facts going to show the accuracy of said conviction to be introduced on the trial of Dent, when the introduction of said facts does not bring home with any greater or fuller force knowledge of said conviction to Dent than the judgment introduced upon the trial of this case? Whart. Crim. Law, sees. 237, 242, 244; White v. People, 81 Ill., 333. The court charged the jury as follows: "These records [that is, the judgment, sentence, and indictment of Isaacs] are admitted alone for the purpose of proving that George Isaacs was guilty of the murder of Tom T. McGee, as charged in the indictment in this case, and you will not consider this evidence for any other purpose than that for which it was admitted; that is, for the purpose of proving George Isaacs to have been guilty of murder in the first degree, as charged in the indictment against him, as determined by the judgment of the Hardeman County District Court. You are instructed that said records are conclusive proof of the conviction and guilt of George Isaacs, of murder in the first degree, and of the murder of Tom T. McGee by said Isaacs.” We think the court erred in this charge. It was the duty of the court to tell the jury that the records introduced (naming them) were prima facie proof of the conviction and guilt of George Isaacs of the murder in the first degree of Tom T. McGee, and not conclusive proof of said fact. Floeck v. State, 34 Texas Crim. Rep., 314. But, in view of the fact that appellant introduced no evidence, we are then confronted with the proposition as to whether the error of the court was calculated to injure the rights of appellant. We have searched in vain for a distinction between evidence that makes out a prima facie case that is uncontroverted and a charge to that effect and a charge that says said evidence is conclusive. If the jury in this case had been told by the court that the records were prima facie evidence of the guilt of Isaacs, could there be any controversy over the fact that they would have concluded under the evidence before them that defendant was guilty? We think not. Then certainly, under the mathematical aphorism that “things that are equal to the same thing are equal to each other,” we think it can be accurately stated that this charge was not calculated to injure the rights of appellant. So believing, we do not think appellant is entitled to a reversal. Barnett v. State, 42 Texas Crim. Rep., 302, 2 Texas Ct. Rep., 447; Johnson v. State, 42 Texas Crim. Rep., 87. Appellant filed a motion for continuance for want of the testimony of J. J. Sutherland and Fred Hasbrugh, by whom he proposed to prove that Isaacs was not present at the time McGee was killed, but was half a mile away. The court did not err in refusing this application, since we do not think it shows diligence. But, even conceding it does, we do not think the testimony is material, or probably true, in the light of the record before us. An inspection of the case of Isaacs v. State, 36 Texas Criminal Reports, 505, and the statement of facts before us in this case, wherein a certified copy of the mandate of the Court of Criminal Appeals in said case was introduced, which affirmed the judgment convicting said Isaacs of murder in the first degree; and also the indictment against George Isaacs as contained in the record before us, and the verdict of the jury thereon,—all show that said Isaacs was indicted both as a principal and accomplice to murder, and the verdict of the jury was general, thereby making no direct application of the guilt of Isaacs to either count in the indictment. This being true, the testimony becomes immaterial, because, under the indictment against Isaacs, he may have been guilty and still have been half a mile away, and is proposed to be proven by said witnesses. If said witnesses had been present and testified as indicated in said application, would it have probably affected the result of this case? We think not. Furthermore, we do not think said testimony was material upon another phase. An inspection of the forged pardon, as contained in the statement of facts, shows that defendant therein states, “George Isaacs had been adjudged guilty of the offense of murder, and his punishment assessed at confinement in the State penitentiary for life; and whereas, the said murder consisted in his being charged as an accessory to the commission of the crime of murder,”—thus showing that appellant, at the time he forged said pardon, knew that Isaacs was convicted as an accomplice to murder, or believed he was. Therefore we conclude that the testimony of the absent witnesses was not material in the light of this record, and would not probably have changed the result of the trial if the absent witnesses had been present and testified as alleged by appellant. Appellant also contends the court erred in its charge in failing to define what constitutes an accessory, or what constitutes murder in the first degree. The court applied the law directly to the facts. We commend this as the best practice. Wagner v. State, 35 Texas Crim. Rep., 257. He also contends the court erred in charging the jury that the venue was- properly laid in Cherokee County. The proof shows appellant acted through an innocent agent in having Isaacs .released from the penitentiary upon the forged pardon, which pardon was used in Cherokee County for that purpose, Isaacs being confined in the penitentiary in said county. We think this properly places the venue in Cherokee County for the trial of the accessory, Dent. Sikes v. State (Texas Crim. App.), 28 S. W. Rep., 688; Carlisle v. State, 31 Texas Crim. Rep., 537. It may be contended that the facts 'in this case do not make appellant an accessory under article 86, Penal Code. We think the evidence is sufficient. It makes no difference whether appellant enabled Isaacs to escape all of his punishment or not. It is not necessary, in order to constitute one an accessory, that he should enable the principal to escape permanently part of all of his punishment. This question is very satisfactorily settled in favor of the proposition just announced in Wren v. Commonwealth, 26 Grattan, 952. There it was held that any assistance given to one known to be a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to make one an accessory after the fact,—as that he conceals him in the house; or shut the door against his pursuers until he should have an opportunity to escape; or took money from him to allow him to escape; or supplied him with money, a horse, or other necessaries in order to enable ’him to escape; or that the principal was imprisoned, and the jailer was bribed to let him escape, or conveyed to him instruments to enable him to break the prison and escape. True, the test as there laid down as to whether one is an accessory after the fact or not was whether or not the accessory furnished aid by way of personal help to his principal with the view of enabling his principal to elude punishment; the kind of help rendered appearing unimportant. By carefully reading this case it will appear that the common law authorities on the subject are collated by the court; among others: 2 Hawk, P. C., chap. 29, par. 32; 4 Bl. Comm., 37; 1 Hale, P. C., 322, 622; 3 P. Wms., 496. But we are not without authority on this, question in our own State. The question is thoroughly discussed in Blakely v. State, 24 Texas Criminal Appeals, 616. See also Schackey v. State, 41 Texas Crim. Rep., 255. We can not close this opinion without testifying to the very able and matchless way in which the appellant’s counsel and the able Assistant Attorney-General have presented their respective sides of this case. Their research has been tireless, and all the authorities have been reviewed by them in a painstaking effort to solve the many vexing questions involved in this record, and we can not too strongly commend them. We have carefully reviewed all of appellant’s assignments of error, and to no case have we given more investigation than the one now before us. We feel constrained to say there has been no such error committed as was calculated to injure the rights of appellant, and that the verdict of the jury is amply sustained by the evidence adduced. The judgment is affirmed. Affirmed. Henderson, Judge, dissents.
ON MOTION EOR REHEARING. BROOKS, Judge. At a previous day of this term the judgment was affirmed, and now comes before us on motion for rehearing. Appellant contends, in the first paragraph of his motion, that the court erred in holding the indictment sufficient, and in further holding that the verdict of the jury cured the insufficiency of the first count of said indictment, in that the verdict, being a general one, could be applied to the second count of the indictment, which did not set out the means used. In the,original opinion we quoted the Gann Case, 42 Texas Criminal Reports, 133, on the sufficiency of the indictment, which contains an extract from 2 Bishop’s Criminal Procedure, section 8, subsection 3, as follows: “It is in no case necessary to set forth the means by which the accessory after the fact received, concealed, or furnished the principal felon, for it is perfectly immaterial in what way the purpose of the one was effected or the harboring of the other secured, as the means are frequently of a complicated nature, which would lead to a great inconvenience and perplexity if they were always to be described upon the record.” Further, in Foster’s English Crown Cases (page 365), in passing upon a similar question, this language is found: “When the accessory is brought to a trial after the conviction of the principal, it is not necessary to enter into detail of the evidence on which the con-, viction was founded; nor doth indictment aver that the principal was in fact guilty. It is sufficient if it reciteth with proper certainty the record of the conviction. This is evidence against the accessory sufficient to put him upon his defense, for it is founded on a legal presumption that everything in the former proceeding was rightly and properly transacted.” Again, in 1 Chitty Criminal Law, page 273, we find this language: “In an indictment against an accessory alone after the conviction of the principal it is not necessary to aver that th§ latter committed the felony, or on the trial to enter into a detail of the evidence adduced against him. But it is sufficient to recite with certainty the record of the conviction, because the court will presume everything on the former occasion to have been rightly and properly prosecuted.” This doctrine is reiterated in 2 Bishop’s New Criminal Procedure, section 11. .Reverting to the indictment in this case, it is only necessary to allege that the principal, Isaacs, had been adjudged guilty, and the fact of his conviction; the appeal and affirmance of said sentence by this court; and that portion of the indictment which seeks to state the manner and means by which Isaacs committed the murder must be and is surplusage, and, being such, it was not necessary for the State to prove the same. Iñ Mayo v. State, 7 Texas Criminal Appeals, 342, the rule in reference to surplusage is thus stated: “Under the code of this State, an indictment is good, in substance, if, eliminating the surplus-age, it so avers the constituents of the offense as to apprise the defendant of the charge against him and enable him to plead the judgment in bar of another prosecution for the same offense. That which is not necessary to prove need not to be alleged in the indictment.” See also Hammons v. State, 29 Texas Crim. App., 445; Taylor v. State, 29 Texas Crim. App., 466; McConnell v. State, 22 Texas Crim. App., 354; Moore v. State, 20 Texas Crim. App., 275. Now, then, under the above authorities, the indictment is sufficient, as indicated in the original opinion. Appellant’s motion for continuance shows the same was made in order to secure the testimony of witnesses by whom he proposed to prove an alibi for Isaacs. Appellant’s principal (Isaacs) was indicted in the first count for murder of Tom T. McGee, in the second count as an accomplice with Harbolt to said murder, and in the third count as an accomplice to murder with parties unknown to the grand jury. This application, if we conceded the question of diligence as strenuously insisted by appellant, becomes immaterial after the introduction of the indictment of Isaacs, because Isaacs would not have to be present to be an accomplice to the murder under either the second or third counts in the indictment. Appellant insists, however, by force of the fact that the indictment against appellant charges that “George Isaacs, on or about the 23d day of November, 1894, in the county of Hemphill, State of Texas, with malice aforethought killed and murdered Tom T. McGee by shooting him with a pistol,” this necessarily limits the State to proof of a homicide on the part of appellant’s principal, Isaacs, in which said Isaacs was actually present and participated by shooting deceased. In other words, that, although the indictment of Isaacs contained three counts as stated, yet having alleged that Isaacs killed and murdered deceased with a pistol in the indictment against appellant renders the testimony offered to prove an alibi material. We do not think so. In Carlisle v. State, 31 Texas Criminal Reports, 537, it is said, “The word 'murder’ was held to include as well accessories before the fact as principals.” In Isaacs v. State, 36 Texas Criminal Reports, 505, we held, where an indictment for murder contained three counts,—one charging defendant as principal, one charging him as an accomplice to one Harbolt, and the third charging him as an accomplice to persons to the grand jury unknown,—that a general verdict of guilty, without stating the count on which it was based, is sufficient, and will be applied to either one of the counts which is sustained by the proof. It follows, we take it, from the foregoing authorities, that the mere fact the indictment against appellant in this case charges that Isaacs was convicted of the murder of Tom T. McGee makes a sufficient allegation, without stating he was convicted as an accomplice to the murder. And when appellant seeks to prove an alibi he must show that the testimony applies to each phase of the case as made out by the judgment against Isaacs, for on the last two counts in the indictment against Isaacs it becomes immaterial whether Isaacs was present at the time of the homicide or not, since his presence would have made him a principal, and not an accomplice. Therefore, as stated, conceding appellant used the utmost diligence to secure the testimony of the two absent witnesses to prove an alibi, still we hold the court did not err in overruling the application for continuance in the light of the record before us. Nor would the court have committed a reversible error in charging that judgment against Isaacs was conclusive as to his guilt, even if the two absent witnesses had been present, and had testified to the alibi, as stated in the application. In other words, the indictment against Isaacs charging him with murder, accomplice to murder with Harbolt, and' accomplice to murder with parties unknown, and the jury having returned a general verdict, and the court having adjudged him guilty of murder, the judgment of conviction, having been introduced in this case, becomes prima facie evidence of his guilt under the three several counts in the indictment; and, if appellant seeks to controvert the prima facie case so made out by the State, he must do so as to each count in the indictment; and testimony merely showing that the principal was not present at the time of the homicide would not become material and breach the case of the State upon the different phases of the indictment against the principal Isaacs, and, until this is done, we could not hold the court had committed error in refusing the application. Appellant also strenuously insists that we erred in not following the Supreme Court of the United States in Kirby v. United States, 174 United States, 47, 19 Supreme Court, 574, 43 Lawyers’ Edition, 890, cited in the original opinion. We there stated there were several legal differences between the receiver of stolen property, as stated in the Kirby case, and the accessory after the fact. This distinction is made further apparent in Street v. State, 39 Texas Criminal Reports, 134. In that case Judge Henderson, delivering the opinion, uses this language: “Receiving stolen property is a substantive offense, and is covered by our statute. Penal Code, art. 878. An accessory is defined to be ‘one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence.’ Penal Code, art. 86. We construe this to mean that, in order to be guilty of this offense, the person charged must give some personal help to the offender, in order that he may evade an arrest or trial for the offense committed. For instance, B, knowing that A has committed a felony, and that the officers are in pursuit of him, furnishes him with a horse to escape, or furnishes him money or other means to assist him in evading an arrest or trial. As stated above, in our opinion the proof only shows in this case that appellant received the flour which had been burglariously taken, and concealed the same, and under a proper indictment could have been convicted of receiving stolen property. At any rate, the charge given was not a proper charge on the subject, and the charge asked should have been given. As far as we are advised, the authorities all hold that the mere receiver of stolen property can not be convicted as an accessory to the theft itself, or to its burglarious taking, under statutes on the subject similar to our own. Bish. Crim. Law, sec. 699; People v. Stakem, 40 Cal., 599; People v. Shepardson, 48 Cal., 189; Loyd v. State, 42 Ga., 221.” If the foregoing be a proper presentation of the law on this question, then the Kirby case has nothing to do with the decision of this question. We believe we have passed upon all of appellant’s insistences in his motion for rehearing, and see no cause to change our views as expressed in the original opinion. The motion for rehearing is overruled. Motion overruled. . Henderson, Judge, absent.'
DAVIDSON, Presiding Judge. I concur with Judge Brooks in the result reached in this case, and desire to make a few' observations in regard to three questions only. First, the refusal of the court to continue the case; second, the objection to the introduction of the record of conviction and sentence as evidence; third, the charge of the court to the effect that the judgment and sentence were conclusive of the conviction and guilt of the principal, George Isaacs. Judge Brooks treated these questions from the authorities which hold that the judgment of conviction of Isaacs was prima facie evidence of the guilt of said Isaacs as against the accessory, appellant herein. I desire to discuss the same matters from the standpoint of their conclusiveness against the accessory under the allegations in the indictment. Our statute provides that “an accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence.” Thus it will be seen at a glance there are several ways in which a party may become an accessory. This being true, it may be stated as an unquestioned proposition that, where there are several ways by which an offense may be committed, set forth in the same statute, or embraced in the same general definition, and made punishable in the same manner, and are of such character that each act may be considered as representing a stage in the same offense, they may be charged conjunctively in the same count. Where offenses are several in their nature, but yet of such a character that any one of them, when complete, necessarily implies the other, they may be joined in the same count. The pleader may select one of the modes prescribed, and allege it, or he may allege more than one, and this would not render it subject to the charge of duplicity. White’s Ann. Code Crim. Proc., sec. 383, for collated authorities. And proof óf either would authorize a conviction. Recurring to the indictment herein, it will be observed that the pleader only undertook to charge appellant’s connection with his principal, Isaacs, by reason of the fact that subsequent to Isaacs’ conviction he assisted Isaacs to evade the execution of his sentence. Therefore that portion of the indictment which, by way of explanation or historical statement of the case, avers the killing of McGee in Hemphill County, and the return of the indictment in said county for such killing, was not a necessary allegation, and did not call for evidence of the details of the killing. This, being an unnecessary allegation, did not necessarily vitiate the indictment, and therefore could be rejected as surplusage. Such has been the rule in Texas from the beginning. Saddler v. Republic, Dall. Dig., 610; and for collation of authorities see White’s Ann. Code Crim. Proc., sec. 382. Where an indictment contains the necessary averments to constitute one offense, and also details facts necessary to, but not sufficient to, constitute another offense, such facts, with regard to the offense defectively alleged, will be treated as surplusage. Crow v. State, 41 Texas, 468; State v. Coffey, 41 Texas, 46; State v. Dorsett, 21 Texas, 656; State v. Smith, 24 Texas, 285; Henderson v. State, 2 Texas Crim. App., 88; Pickett v. State, 10 Texas Crim. App., 290; Holden v. State, 18 Texas Crim. App., 91. Redundant allegations, and those which are in no manner necessary to a description of the offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the accused, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. Gordon v. State, 2 Texas Crim. App., 154; Burke v. State, 5 Texas Crim. App., 74; Hampton v. State, 5 Texas Crim. App., 463; Mayo v. State, 7 Texas Crim. App., 342; Smith v. State, 7 Texas Crim. App., 382; Rivers v. State, 10 Texas Crim. App., 177; Gibson v. State, 17 Texas Crim. App., 574; Holden v. State, 18 Texas Crim. App., 91; Moore v. State, 20 Texas Crim. App., 275; McConnell v. State, 22 Texas Crim. App., 354; Osborne v. State, 24 Texas Crim. App., 398; Watson v. State, 28 Texas Crim. App., 34; Cudd v. State, 28 Texas Crim. App., 124; McLaurine v. State, 28 Texas Crim. App., 530; Finney v. State, 29 Texas Crim. App., 184; Hammons v. State, 29 Texas Crim. App., 445; Taylor v. State, 29. Texas Crim. App., 466; Waters v. State, 30 Texas Crim. App., 284; McDaniel v. State, 32 Texas Crim. Rep., 16; Loggins v. State, 32 Texas Crim. Rep., 358; Williams v. State, 35 Texas Crim. Rep., 391; Lassiter v. State, 35 Texas Crim. Rep., 540; Webb v. State, 36 Texas Crim. Rep., 41; Jordan v. State, 37 Texas Crim. Rep., 222. That portion of the indictment, therefore, which recites the killing of McGee by Isaacs in Hemphill County, and the transfer of the case from that county to Hardeman County, can be treated as surplusage; that' is, it was not necessary to produce the witnesses showing the details of the homicide in Hemphill County. Appellant did not connect himself with Isaacs with regard to these matters, nor until after Isaacs’ conviction and incarceration in the penitentiary. His only connection as accessory with Isaacs, the principal, is found in his acts, by which he sought to liberate Isaacs from the execution of the judgment and sentence entered against him in Hardeman County. If the pleader had charged all phases of the statute denouncing the punishment against accessories, and the State had only been able to prove the violation of one, the other allegations could be disregarded by the court. It was only incumbent on the State, under this indictment, to prove the fact that Isaacs was convicted and sentenced in Hardeman County, and incarcerated by virtue of said judgment and sentence in the penitentiary; and that appellant, knowing these facts, succeeded by the means charged in relieving him from such custody. This would have been sufficient evidence in regard to Isaacs being an offender, or guilty of a criminal violation of our law, as found by the judgment and sentence. As the allegations are, so must the evidence be. Therefore the record of conviction and sentence was not only admissible, but was the best evidence, and conclusive of the conviction and guilt of Isaacs. . The continuance was sought for two witnesses, by whom he expected .to prove that Isaacs was not present at the homicide of McGee. The judgment of Hardeman County adjudged him guilty of murder in the first degree, and appellant could not go behind that judgment, and inquire into the details °of the killing, because he had only connected himself with Isaacs after his conviction and incarceration in the penitentiary. He was not assisting Isaacs to evade an arrest or trial, but only relieving him from the execution of his sentence, and he could only defend against his acts in this connection, and not against acts prior to the conviction., Therefore the court did not err in refusing the continuance, for, if the testimony had been offered, it would have been inadmissible. When the judgment and sentence were offered as evidence, appellant objected because he was entitled - to be confronted by the witnesses against him. That clause of the Constitution has no application to records and judgments, and, but for the earnestness of counsel, would not be noticed. White’s Ann. Code Crim. Proc., sec. 1064, for collated authorities; People v. Jones, 24 Mich., 214; Bish. Crim. Proc., sec. 1134. In support of his contention we are cited to Cline v. State, 36 Texas Criminal Reports, 320. That case has no application to this question or this case. Appellant’s counsel also rely upon Kirby v. United States, 174 United States, 47, 19 Supreme Court, 574, 43 Lawyers’ Edition, 890. This case goes to the extent of holding that the judgment of conviction of the principal is not evidence against the receiver of stolen property. It is not necessary to enter into a discussion of that case, for two reasons: First, there is a marked difference between the relation of receiver of stolen property to the thief as contradistinguished to the accessory’s relation to his principal. One connects himself with the crime itself, the other with the offender. Second, to review that case would lead to a discussion not only of the differences between those classes of crimes, but into the rule of prima facie evidence, where judgments are sought to be introduced in both character of cases. However, the Kirby case does assert the proposition that as proof of the fact of conviction the record is not only admissible, but is conclusive. The sentence of Isaacs was necessary, under this indictment, to be proved, as the State’s case as charged connected him only with Isaacs after conviction and sentence. The only way by which this could be shown was by the record of conviction and the sentence. This was the best evidence. And, if evidence had been offered of an oral character, the State would have been met with the fatal objection that the records were the best evidence. It is not only the best evidence, but it is the only evidence by which those matters alleged in the indictment could be shown. Germane to this, it may be stated that the judgment and sentence of a court of competent jurisdiction can not be contradicted, varied, or falsified by parol evidence. Vestal v. State, 3 Texas Crim. App., 648; Cox v. State, 7 Texas Crim. App., 495. Hence appellant would not be permitted to introduce parol evidence to impeach the judgment or sentence, or go behind the record, and enter into a discussion of the testimony as to whether Isaacs was or was not present when Tom T. McGee was killed. He was not charged with being an accessory to Isaacs in assisting Isaacs to evade an arrest or trial; and therefore the matters occurring prior to the conviction could not be inquired into by appellant. Even under the rule which might authorize strangers to impeach a judgment, appellant would not be authorized attack the judgment against Isaacs, for it is only those strangers who, if the judgment were given full credit and effect, would be prejudiced in regard to some pre-existing right, that are permitted to impeach the judgment. Freem. on Judg., 3 ed., sec. 335; Wilcher v. Robertson, 78 Va., 602. Whatever rights appellant may have had on the trial did not occur prior, but subsequent and subordinate, to the judgment, because his connection with the case only occurred after the conviction. It is also contended the court erred in charging the jury that the record of conviction and sentence was conclusive evidence of the conviction and guilt of Isaacs. -The charge of the court was correct. It is a rule of general application that the legal effect of a judgment of a court of competent jurisdiction is decided by the court, and not the jury. The charge was not, therefore, upon the weight of evidence, as urged by appellant. In Broxton’s case, 9 Texas Criminal Appeals, 97, appellant was indicted for carrying tools and chemicals into the jail with the intent to aid the escape of a prisoner therein confined on an accusation of felony. The court charged the jury that the two indictments, capias, and returns of the officers introduced in evidence by the prosecution were sufficient proof to establish, the allegations contained in the indictment that Lattimore, the person charged in the indictment and capias, was confined on an accusation of felony. It was insisted that this charge was erroneous, as being upon the weight of the evidence. On appeal this court said it was not. It being a question of the legal effect of indictments and capias, it was a matter peculiarly within the province of the court to determine, and was therefore the duty of the court to charge the jury as to such legal effect. White’s Ann. Code Crim. Proc., sec. 811, for authorities. The judgment was conclusive of' Isaacs’ guilt. Its legality was not the subject of inquiry at the hands of the accessory. A party can not invade the penitentiary and discharge-inmates held under confinement and sentence of courts of competent jurisdiction; and upon trial therefor be heard to assert that the prisoner was illegally confined because the facts did not support the conviction. A kindred question was discussed by this court in Cordway v. State, 25 Texas Criminal Appeals, 405. Cordway was placed upon trial for per? jury committed upon the trial of one Coy, who had been extradited from Mexico. After being brought to Texas, Coy was tried in Wilson County for a different homicide than that for which he was extradited. In avoidance of conviction, Cordway proposed to take advantage of the-fact that Coy, under the extradition treaty, ought not to have been tried in Wilson County, because he had not been extradited for the murder-committed in that county. The court held substantially that, if Coy could take advantage of this, Cordway could not. Judge Brooks discussed the effect of the judgment against Isaacs from the standpoint of the authorities which hold that it was prima facie evidence against the-accessory of the guilt of the principal. The weight of the authority sustains this proposition under the law under which the accessory in those cases was tried. See. the cases cited by him in his opinion, tinder our-statute and the allegations in the indictment in this case, I believe the judgment and sentence conclusive of the guilt and conviction of Isaacsagainst appellant, as his accessory. Much has been written with reference to the effect of judgments of conviction of the principal when introduced as evidence against the accessory. A majority, if not all, of the cases hold that it is prima facie evidence of the guilt of such principal as against the accessory. But the question at issue here was not discussed in any of these cases, so far as I have been able to ascertain. The-reason why this is so, so far as the English cases are concerned, is patent. In England the offense of accessory was not constituted as charged in this indictment; that is, by rendering aid to a convict to evade the execution of his sentence. There all the acts of the accessory which constituted him such were rendered the principal before his conviction, and after the fact. Therefore, in England the question here discussed could not have arisen; and the principal’s conviction could only be used against-the accessory where the principal had been convicted subsequent to the-assistance rendered him by the accessory; the accessory being on trial subsequent to his principal’s conviction. The question there was whether or not a record of conviction under those circumstances would be admissible against the accessory. Even in this state of case, under the authorities in England, as I understand them, the judgment against the principal would be prima facie evidence of the guilt of the principal when introduced against the accessory. In all the cases that have come under my observation the accessory was connected with the principal offender, before the principal’s conviction; and this was necessarily so, because the character of crime denounced against the accessory under discussion was. not constituted in any of those jurisdictions as it is with us; that is, aiding the principal to evade the execution of his sentence. If the-accessory is being tried upon an allegation that he rendered assistance-to the principal, in order that he might evade an arrest or trial, then the cases which lay down the prima facie rule might become the subject, of investigation and discussion. All I have said pertains only to accessories after the fact. Accessories before the fact, and the law applicable thereto, are not in this case. I have not entered into a discussion of void judgments. The judgment in this case in unquestionably one rendered by a court of competent jurisdiction. Of this no question was raised on the trial below. That appellant knew of the rendition of the judgment and the sentence against. Isaacs is placed beyond question. He and Isaacs had been incarcerated in the county jail at Fort Worth. Pending the appeal of their cases to this court, they had been incarcerated in the penitentiary at Busk. They had spent some time together in that penitentiary. Appellant was subsequently pardoned. He then set about to procure the illegal liberation of Isaacs, with the hope of obtaining a heavy reward, and to this end forged the pardon which eventually carried out his design. In forging the reasons why Isaacs’ pardon was granted, appellant gave a fair history of his principal’s case from its inception, as well as many false reasons why he should be liberated. This was done by procuring a genuine pardon, issued to another party, and erasing the name of that party, and the reasons assigned by the governor for granting that pardon; and inserting therein the name of George Isaacs, and the reasons why George •Isaacs was pardoned. I therefore concur with Judge Brooks in affirming this judgment. In my opinion, it was not necessary for the State to enter into the details in regard to the killing of Tom T. McGee in Hemphill County; that the fact he was killed in that county is sufficiently-met, so far as this case is concerned, by the judgment of conviction against Isaacs finding him guilty of murder in the first degree, and the consequent sentence imposed for that offense; that the introduction of the judgment of conviction and sentence was not violative of that clause of the Constitution which guarantees to an accused the right to be confronted with the witnesses against him; nor was the charge given the jury by the court upon the weight of the evidence. The court further, and in addition, properly instructed the jury with regard to appellant’s connection with obtaining the release of Isaacs from the penitentiary.
HEHDEBSON, Judge, (dissenting).—Appellant was tried and convicted in the District Court of Cherokee County on an indictment charging him with being an accessory after the fact in aiding George Isaacs to escape from the penitentiary at Rusk, where he was confined undergoing a life sentence for the murder of T. T. McGee. He prosecuted an appeal to this court, and the judgment of the lower court has been affirmed by a majority of this court. It is held in the opinion that the court did not err in overruling appellant’s motion for continuance; that neither diligence was used, nor was the absent testimony material or probably true. It is also decided that the court acted correctly in admitting the record of Isaacs’ conviction as prima facie evidence of Isaacs’ guilt as against appellant. It is conceded, however, in the opinion, that it was error for the trial court to instruct the jury that such record was conclusive evidence against appellant on that issue, but that this error was immaterial, and without prejudice to appellant. Against all of these propositions I am constrained to utter my dissent. In appellant’s motion for continuance the diligence stated to procure the witnesses was substantially as follows: The indictment was returned into the District Court of Cherokee County on the 16th day of June, 1900, and the trial came up on the 27th of June following. On the 18th of June, and before copy of the indictment was served on him, he procured process to Potter County for J. J. Sutherland, and on the 19th of June to Hemphill County for Fred Hasbrugh, alleged to reside' in said counties, and caused the same to be forwarded by due course of mail to the respective sheriffs of said counties; that said process had not been returned into court at the time of trial, to wit, on the 27th of June, 1900. It is said by the court that this was not sufficient diligence, but it is not stated in what respect the same was defective. Certainly, it could not be held there was laches in not procuring process and forwarding it soon enough. And, inasmuch as the process had not been returned at the time of trial, I can not see what other step could have been taken to have rendered the diligence more complete, unless it be held that the application should have shown issuance of process on the 26th of June, the day before the trial, to Dickens County, for the witness Hasbrugh, when it was discovered that he lived in said county, instead of Hemphill. However, this could not be considered a lack of diligence even as to one of the witnesses, as the discovery was made only the day before the trial. Dickens County is as far from Cherokee as Potter and Hemphill counties, and process had not been returned from either of said counties. The effort made to procure the attendance of the witnesses was distinctly set forth, and it is apparent therefrom that all means provided by law were promptly resorted to in order to obtain their attendance; and this, under the authorities, was all that was required. See White’s Ann. Code Crim. Proc., art. 597, subdiv. 2, sec. 600, for authorities. But, if it be conceded that sufficient diligence was not used (which, however, would be doing violence to the application), when it became apparent that the testimony was material, a new trial should then have been granted because of the error in overruling the motion for continuance. Art. 605, sec. 642, subdiv. 2, White’s Ann. Code Crim. Proc., for citation of authorities. Appellant proposed to prove by the absent witnesses an alibi for his principal, Isaacs; that is, the indictment charged Isaacs with being a principal in the murder of McGee. In this respect both counts are as follows: “That George Isaacs, on or about the 23d day of November, 1894, in the county of Hemphill, in said State of Texas, did, with malice aforethought kill and murder Tom T. McGee, by shooting him with a pistol.” And it was stated in the motion that by both witnesses it was expected to prove that Isaacs was not at the place where the homicide was committed, but was at that time at another and different place, some distance therefrom, naming the place, and so could not have participated as a principal in the alleged murder of McGee. Of course, it will not be gainsaid that all the authorities hold that the guilt of the principal must be alleged in the indictment; also that it must be proved as alleged. So it follows, as does night the day, that, if it was incumbent on the State, iinder the allegations in the indictment, to prove Isaacs was present and participated in the killing of McGee as a principal, any testimony tending to show he was not present, and so could not have participated as a principal in said act of killing, was not only competent, but was absolutely material to his defense. See authorities cited under sec. 609, White’s Ann. Code Crim. Proc.; Baines v. State, 42 Texas Crim. Rep., 510. A majority of the court conclude that this alibi testimony was not material, because they say Isaacs may have been convicted not as a principal, but as an accomplice to the murder of McGee; and in so holding they refer to the indictment in the original case against Isaacs for the murder of McGee, which was introduced in evidence in this case, and to the opinion of the court in that case. No authority is referred to in the opinion as a precedent for this court to take judicial cognizance of these matters, and I am not advised that any precedent exists for such a course. Bear in mind that the indictment in the case against this appellant did not charge his principal, Isaacs, as an accomplice to the murder of McGee, but both counts charged him as a principal in that transaction, and our decisions do not authorize one charged as a principal to be convicted as an accomplice. See authorities cited under art. 79, sec. 102, White’s Ann. Penal Code. The proof on the part of the State on the trial of appellant was bound to follow and respond to tire indictment, which charged that Isaacs shot and killed McGee- with a pistol; that is, it charged him as a principal in said homicide. This was the accusation appellant was called on to answer, and no other; and he proposed to show it was not true, as alleged, that Isaacs was a principal in the murder of McGee. And I submit it is no answer to appellant’s proposition for the State to go outside the indictment against appellant, and say that his principal might have been convicted for an offense not alleged in the indictment against him. If the suggestion contained in the opinion that matters dehors the indictment and the evidence responsive thereto can be appealed to in this case in order to sustain the action of the court overruling the motion for continuance, it proves too much, for, if Isaacs was convicted as an accomplice, and not as a principal, then the record of his conviction was not admissible against appellant in this case, because the indictment did not charge that his principal was an accomplice in the murder of McGee, and the record should have been excluded upon that ground, and not -treated by the court as conclusive evidence of the guilt of Isaacs of the offense charged in the indictment against appellant. As to the want of probable truth of the testimnoy of the