Court of Criminal Appeals of Texas, 1896

Isaacs v. State

Court of Criminal Appeals of Texas · Decided December 9, 1896 · Hurt

38 S.W. 40; 36 Tex. Crim. 505; 1896 Tex. Crim. App. LEXIS 206 (South Western Reporter)

Counsel

Plemmons Veal, Ownley Johnson, Oeland Littleton, attorneys for appellant. — The acts and declarations of Tulsey Jack, at Taloga, Indian Territory, thirty-seven days after the alleged conspiracy had ended, and the acts and declarations of the said Tulsey Jack, Bitter Creek, Jim Stanley, Jim Harbolt, and Joe Blake, at the residence of the witness, McKenzie, three days after the conspiracy had ended, were introduced by the State and relied upon to obtain a conviction in this case. If we did not apply the ordinary rules excluding the acts and declarations of a co-conspirator, after the conspiracy has ended, either by accomplishment or abandonment, then this testimony would be powerful in producing a conclusion of guilt, and inasmuch as these rules in the admission of these acts and declarations were disregarded, they were equally powerful in producing that same fact upon the minds of the jury in the trial of this case. The statement or declaration of a co-conspirator, after the conspiracy is ended, either by accomplishment or abandonment, even if the abandonment be voluntary, or compelled, are not admissible in evidence against any person but himself, though the object of the conspiracy be not ended, the acts and declarations of a co-conspirator are not evidence against another co-conspirator, unless they are in furtherance of the common design. McKenzie v. State, 32 Tex.Crim. Rep.; Cohea v. State, 11 Tex.Crim. App., 153; Ricks v. State, 19 Tex.Crim. App., 308; 8 S.W. Rep., 510; 2 S.W. Rep., 627; Amer. and Eng. Ency. of Law, Vol. 4, p. 634; Martin v. State, 30 S.W. Rep., 222. The court erred in permitting the State's witness, Dan McKenzie, to testify, over defendant's objection, that the signature on the end of the packages shipped from Kansas City to Canadian was, in witness' opinion, the same signature that was to the letter shown witness at Taloga by Tulsey Jack, because said witness had not qualified as an expert, had not testified that he had ever seen Isaacs write his name; had not testified that he was even familiar with the defendant's name or the writing thereof, or that he had ever seen the defendant write at all. To entitle a witness to be examined as an expert in the comparison of handwriting, he must, in the opinion of the court, have special practical acquaintance with the immediate line of inquiry, and the question of his competency as such expert, is one for the court, and not the jury, to determine. Whar. Crim. Ev., Sec. 406; Jones v. State, 7 Tex.Crim. App., 457; Speiden v. State, 3 Tex.Crim. App., 156; Heacock v. State, 13 Tex.Crim. App., 130. The court erred in that part of its charge under paragraph 18, in which he tells the jury, "it is immaterial whether the crime actually committed was done while carrying out or attempting to carry out the original plan as at first contemplated, or in the manner, or at the place, or by the persons, as at first contemplated. It is sufficient if the same ultimate object was being pursued by the conspirators." Where the original plan of the conspiracy is changed and the place of its carrying out is changed, and where the persons agreed upon to carry it out are changed, it, seems to us that the conspiracy is destroyed; and if any crime is committed, it is in pursuance of a new conspiracy, composed of different persons, to be carried out by them at a different time and place. When the guilt of the accused is dependent wholly upon circumstantial evidence, it is the duty of the court, in its charge, to apply the law applicable to such evidence, whether requested to do so or not, and a failure to do so is fundamental error, and will require a reversal of the conviction, although the error be not excepted to. Especially is it the duty of the court to give such a charge when requested to do so by the defendant in a special instruction which embodies the very essence of the law upon that subject, as approved by the repeated adjudications of our highest courts. The only reason that can be given in explanation of the court's refusal to charge on circumstantial evidence is, that the defendant has made a confession which obviates the necessity of such a charge, and this reason, we think, is insufficient as a legal explanation. If we look alone to the defendant's confession and undertake to gather such facts as will show his guilty complicity in the murder of Tom McGee, we can find nothing save and except an admission by him that he shipped the money to Canadian; that he falsely endorsed the packages, and that he had an agreement with his fellow-conspirators that the train should be robbed between Higgins and Canadian by them, and in this same confession the defendant stated that after the train had passed the place where it was agreed the robbery would be committed, he had an apprehension lest the scheme had in some way miscarried. He did not confess to a knowledge of any robbery which was to take place at Canadian. He did not confess to any character of criminal participation in the murder. He did not confess to a knowledge of who the persons were that committed the homicide, and no where in his confession, indulging the greatest latitude in its construction, can there be found any admission which would include or insinuate any knowledge of any homicide contemplated by anybody. Again, the question as to whether or not this confession should be considered by the jury, being one which depended upon how they should construe the declarations and conduct of the witness, Dodge, toward the defendant, render a charge upon circumstantial evidence absolutely imperative, because if the jury should decide that the defendant's confession was not voluntary, and was made by him without first being cautioned, as the law requires, then the case is one wholly depending upon circumstantial evidence for its support, and even in that view of the case a charge should have been given to the jury by which they should have been guided according to the law governing circumstantial evidence. Again, the confession of the defendant considered most strongly against him, means simply that he had shipped $500 in five packages of $100 each, consisting of one and two dollar bills. That he falsely endorsed on each of these packages a valuation of $5,000; that it was his intention and the intention of his fellow-conspirators to hold up the train before it reached Canadian and rob the express messenger of these packages, and afterwards sue the express company for the value shown to be endorsed on said packages, towit: $25,000. Now let us suppose that this scheme had been successsfully carried out, and that the defendant and his fellow-conspirators had been apprehended, arrested and were put on trial under a charge of robbery. If we look to the statutes defining that offense, we find it as follows: Article 722. "If any person by assault or violence, or by putting in fear of life or bodily injury shall fraudulently take from the person, or possession of another, any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years." On a further examination of the decisions of this State announcing the law and in the construction of said statute, we find that in the case of Barnes v. State, 9 Tex.Crim. App., 128, the court said: "An indictment for robbery must clearly show upon its face by appropriate averment that the property taken belonged to some person other than the accused, or that the party deprived of the possession through violence was entitled to such possession; the accused the owner of property, entitled to its possession, cannot be held guilty of robbery, although he takes it from another by violence and by putting in fear of life." Again, as robbery is a species of theft we must look to Article 730, relative to the guilt of a party who fraudulently takes property belonging to himself, and we there find, "that no person can be guilty of theft by taking property belonging to himself, except in the following case, to-wit: (1) Where the property has been deposited with the person in possession as a pledge or security for debt. (2) Where it is in the possession of an officer of the law by process from a court of competent jurisdiction. (3) Where the property is in the possession of an executor or administrator for the purpose of administration. (4) In all other cases where the person so deprived of possession is at the time of taking lawfully entitled to the possession thereof as against the true owner." Again, the definition of robbery, as above quoted, includes as an essential element of the offense an intent upon the part of the person committing a robbery, to appropriate the property to his own use. The question then arises in this connection, could the defendant and his fellow-conspirators have been legally convicted of robbery, if they had been successful in the prosecution of their scheme? The confession of the defendant only reaches to a robbery which had for its object the taking of the five packages of money. The undisputed evidence is, that this money belonged to and was the property of the defendant, and that the express charges for its shipment had been prepaid by him at Kansas City. It was not in the possession of the express company under any of the exceptions named in Art. 730, of our Criminal Code, and the only one of those exceptions which could in any wise bear upon the question at all is No. 4, and it only says that a party may be guilty of the theft of his own property when a person deprived of possession is lawfully entitled to such possession against him. In this case, we think that the defendant or his fellow-conspirators, whose acts in law would be his acts, and whose responsibility in law would be his responsibility, were entitled to the possession of this property at any place or time, and if they fraudulently took possession of said property from the express company, they could legally be guilty of nothing more than a trespass or an assault upon the messenger, agent or person in charge of same. If this be true, then the confession of the defendant was only one among a number of disconnected circumstances indicating his participation in the offense charged, and, therefore, did not relieve the court of the duty of submitting to the jury a charge upon circumstantial evidence. As to charge on circumstantial evidence, see, Willson's Crim. Stat., § 2342, and authorities cited thereunder. As to question of the effect of defendant's confession, see, Barnes v. State, 9 Tex Crim. App., 128; Smedley v. State, 30 Tex. 214 ; Childs v. State, Sup. Ct., Austin term, 1875; Arts. 722 and 730, Penal Code. G.W. Walters, District Attorney; Carter Cowan, H.E. Hoover and Mann Trice, Assistant Attorney-General, for the State, filed a most able and elaborate brief, in which they take up the charge of the court paragraph by paragraph, and cite the authorities sustaining each paragraph, and which, the Reporter regrets, that, on account of its length, he is unable to reproduce that portion of the brief here. There was no error in the court's refusing to give a charge upon circumstantial evidence. It is only where the evidence is wholly circumstantial that the charge on circumstantial evidence is necessary. Wilson v. State, 21 S.W. Rep., 361; Ellis v. State, 24 S.W. Rep., 894; White v. State, 32 Tex. Crim. 625 . This was not a case of circumstantial evidence wholly, because (1) George Baker and D.S. Cohn both testified to seeing the shots fired between the deceased and the party who killed him; (2) the declarations of the deceased himself detail the circumstances of the killing; (3) the defendant's confession shows that he was in a conspiracy with parties to effect the robbery. It is true that without the aid of circumstantial evidence the defendant would not have been shown to be guilty; so it is in a case where one is charged with theft, and the taking is admitted. In such a case it is held not necessary to give a charge on circumstantial evidence. The mere taking does not constitute theft. It is the fraudulent taking with intention to deprive the owner of the property, to appropriate it to the use of the person taking, which constitutes the essential ingredient of the offense. This essential ingredient may be proven by circumstantial evidence, and if the one fact of taking be admitted by the defendant, then a charge on circumstantial evidence is not required. So in this case, the corpus delecti was proven by eye witnesses to the transaction. The fact of a conspiracy to commit the crime of robbery was admitted by the defendant, and his participation in a part of that conspiracy proven by direct testimony. Hence it is not a case dependent on circumstantial evidence, and no charge upon this subject was necessary. This remarkable case presents a case in which the person convicted did not commit any of the criminal acts occurring at the very place of the killing, but whose sole will brought it about by a series of criminal conspiracies and acts performed to carry out the design, on part of himself and his co-conspirators. In our view of the case it is quite immaterial whether the State's theory be correct in point of fact as to the names of the parties who were present at the killing and performed that bloody deed; certain it is that whoever it was whose guilty hand did that deplorable act, he was a conspirator with the defendant to rob the express company of the $500 in order that the defendant might call for his money and collect $25,000 from the express company. The fact that defendant was not at the depot at the time of the killing, but in bed (if that be true) at the hotel, does not render him any the less a principal. He was evidently at Canadian to call for his money, and no doubt to let his guilty participants know he was there and that the money was there. He could not well have notified them otherwise, and the proof shows that he said next morning that after getting off the train he went forward to mail a lettter on the train, thus passing the express car. He was waiting in the hotel to carry out the other acts necessary to complete the plan. What would it have profited him if his part were then complete; what would he have gained? He could have recovered $500, but would also have lost that amount. Evidently he was to collect his $25,000, and probably to divide it with his pals, in order to complete the conspiracy. Then he was doing the part to be performed by him at the time of the killing. His mind, his intent, his expectation concurred in that of his co-conspirators to rob, in carrying out which the murder was committed, and he was thus a principal to the killing of Tom T. McGee. As said in Berry v. State, 4 Tex.Crim. App., 492: "We do not understand that it is necessary in order to constitute this relation to the crime, that all should be actually present and acting at one and the same time, but that the whole be in pursuance of a plan in which the minds, and not the hands, of all concur." The State's theory, therefore, was that the defendant was a principal, but as the indictment charged him, also, as an accomplice, the question as to whether he, being absent, was not a principal, becomes unimportant, since he performed all the acts necessary to render him an accomplice.

Opinion of the Court

HURT, Presiding Judge.

Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life; hence this appeal. The indictment contains three counts. The first count charges appellant as a principal; the second charges Jim Harbolt with the murder as principal, and the appellant, as not being present, advising or encouraging Harbolt to commit the murder—in other words, charges the appellant as an accomplice to Harbolt in the murder; and the third count charges him as an accomplice to the murder of McGee, committed by some person, to the grand jurors unknown. Theie is a general verdict of guilty, without stating upon which count the verdict is based. This is sufficient, and the verdict can be applied to the count sustained by the proof. It appears from the record that appellant, in Kansas City, Missouri, purchased a large number of small currency bills, and placed them in five packages. The packages were sealed up, each marked $5000, and were placed with the agent of the express company at Kansas City, for shipment to Canadian, in Hemphill County, Texas. When the train carrying the money arrived at Canadian, it was dark, and the deceased, McGee, had been requested by the agent to be' at the depot (he being informed of the fact that the company had in its possession the money above alluded to). McGee was at the depot, and, as he stepped out of the door of the of *529 fice, saw a man, and hailed him, and.stated he wanted to see him, whereupon the strange man began firing upon him, and at the same time shots were fired from several different directions at McGee. McGee was killed. Isaacs confesses that he purchased the small bills; that he had placed them in five different packages; that he had marked each as if it contained §5000, and placed them with the express company at Kansas City, to be shipped to Canadian, Texas; that he entered into the conspiracy and agreement with Jim Stanley, Bill Doolan, and two other parties; that they came to his house, in the Indian Territory, and proposed to furnish defendant with money for him to go to Kansas City, and ship the money to Canadian, Texas, indorsing on the packages so shipped, a much larger amount than they really contained; that defendant suggested to Stanley that it would be better for him (defendant) to ship some cattle to Kansas City, and get the money that way, and ship it out. It was further agreed that defendant was to ship the money, and Stanley was to rob the train between Higgins and Canadian. Defendant said that he was a poor man, and, having no money, agreed to this; that there were two or three talks, between themselves, about this matter. Defendant said that he did not know for certain who was at Canadian except Stanley, that Stanley was to get the men to do the robbing; that he (defendant) was to leave with said cattle for Kansas City about the 20th of November. Defendant further stated that he did nearly all of this talking with Stanley, but that Bill Doolan was with them; that, in accordance with this agreement, he shipped the cattle to Kansas City, got the money, went to the express office, got the envelopes, ascertained the rate on money, paid the express charges, amounting to about §30; that he shipped it in five packages to Canadian, and marked each of them §5,000; that he put §100 in each package, making §500 in all; that he got on the same train which carried out this express, and came with it to Canadian; that he expected the train to be robbed between Higgins and Canadian, and after passing Higgins and getting near Canadian, he felt uneasy, for fear that something had miscarried. The description given by appellant of Jim Stanley, Bill Doolan, and the other two men, coincides with the description given by the other witnesses of these parties. At the time of the shooting, appellant was in the hotel, which is situated about 250 or 350 yards from the depot at which the shooting took place. The State’s theory of the case is, that Stanley, or perhaps Doolan, or Harbolt, did the killing, in the attempted perpetration of robbery. It is not necessary for us to decide whether appellant was a principal or an accomplice. It is evident that he was, at least, an accomplice to the murder. We have his confessions to that effect. Now, to convict under this indictment, proceeding upon the theory that he was an accomplice to the murder, the State must prove that Harbolt or some person with whom appellant conspired to commit the robbery killed the deceased. It is not necessary to prove that the person or persons killing the deceased entered into a conspiracy or agreement with the appellant to rob the express company. If those with *530 whom he conspired employed others to attempt the robbery, appellant is responsible to the same extent as if he had made the agreement with them himself. Having set in motion that which resulted in the death of the deceased, he would be an accomplice to any person, whether instigated by himself directly, or whether instigated by those with whom he had conspired. Having positive proof that he had entered into the conspiracy to rob the express company, the next question that presents itself is this: Is there positive proof that some person killed McGee (the deceased), in the attempt to rob the express company, who was a co-conspirator with the defendant, or who had been employed by those with whom appellant had conspired. Tulsey Jack confessed to McKenzie that he was present at the homicide. McKenzie testified: “While talking about the death of McGee, Tulsey Jack asked me what I had heard about it. I told him I had heard it two or three different ways, and he said, ‘Yes; so have I.’ They claimed that there were seven or eight of us at Canadian, who robbed the train, but didn’t any of them have it right. There was only four of us. Three went up to the depot, and Joe Blake stayed back with the horses. He said that son-of-a-bitch, George Isaacs, tried to swindle them and the railroad company, too; that he promised to ship $5000, and sent only $500.” The real name of Tulsey Jack was Will Blake. If this confession be true, then the State has positive proof that Blake, alias Tulsey Jack, was present when McGee was killed; that he was there for the purpose of robbing the express company of the money deposited with it by appellant at Kansas City for shipment. The next question arising is: As the appellant, in his confession, does not name Tulsey Jack as one of the conspirators, have we positive proof that Tulsey Jack was a co-conspirator with appellant, or that he was employed by some of those with whom appellant had conspired, to-wit: Jim Stanley, Bill Doolan, or others? If there is no positive proof of this fact, then this is a case depending upon circumstantial evidence, because we might concede that there is positive proof that Tulsey Jack was present and a principal in the killing of the deceased; but, if the proof fails to connect appellant with those who did the killing, he is not responsible for the homicide, though he had conspired with Stanley, Doolan, and others to rob the express company. We do not wish to be misunderstood. If appellant entered into a conspiracy with Jim Stanley, Bill Doolan, and others to have the train robbed, and they- attempted to rob the train, and, in doing so, killed McGee, appellant would be guilty of the murder. If those with whom he conspired did not kill McGee, were not present at the time of the killing for the purpose of engaging in the robbery, but some person instigated by them was attempting to rob the express company, and the .murder occurred, appellant would be as guilty as if McGee had been killed by some person with whom he had conspired to have the express company robbed. But if the testimony establishing the fact that McGee was killed by some person with whom appellant had conspired, or who had been employed by some of the co-conspirators, does not *531 amount to positive proof, then this is a case of circumstantial evidence, and the court should have given a charge upon such a case, especially when requested by the appellant. Now, the question is: Is there positive proof that some one killed McGee who had been inspired to do so by appellant, or by some of his co-conspirators ? Appellant wrote Tulsey Jack a letter, after he had been arrested and liberated. The witness, McKenzie, saw the letter, and the name signed thereto was George Isaacs. McKenzie swears that it contained, in substance, the following: “That he (Isaacs) had got out all right, and had given nothing away.” While this may be circumstantial evidence, or, in other words, it may not be a direct confession connecting appellant with Tulsey Jack, who had confessed that he participated in the attempt to rob and murder, yet but one conclusion can be made from the statement contained in the letter. There is no danger of drawing a wrong conclusion from the statement. Appellant, in that letter, referred to nothing else except the robbery, the murder, and the murderer. Now, the danger in circumstantial evidence consists in drawing improper conclusions from the facts sworn to, but this danger cannot ■exist in this case. We have been discussing the question as if the State relied alone upon connecting Tulsey Jack with the murder as a principal, and by the letter connecting the appellant with Tulsey Jack. The State was not forced to do this. Appellant states positively and unequivocally that Jim Stanley, the man with whom he conspired, was present when McGee was shot. “Defendant said that he did not know for certain who was at Canadian, except Stanley,” referring to the time and place of the robbery, at the time McGee was killed. He was certain that Stanley was there, but uncertain as to any one else being there. Now, the proof shows that there were four men engaged in the attempted robbery. Defendant shows that he got off the train at the depot at which McGee was killed, before the attempted robbery. He is certain that Stanley was there. This is perfectly reasonable. No doubt, he saw Stanley after he left the train, and before he went to the hotel. That Stanley was there is established beyond any sort of doubt by the circumstances of the case. He was seen late in the evening going there, and was followed the next day by Capt. Arrington, back to the Indian Territory, and identified as one of the men stopping at McKen.zie’s. Then there is positive proof that, at least, one of the parties with whom he had entered into the conspiracy to have this robbery effected was a principal in the murder of McGee, whether he shot him or not. We are of opinion that this is not a case depending solely upon circumstantial evidence.

The State introduced in evidence the envelope in which the money was placed at Kansas City for shipment. Isaacs, the appellant, had signed his name upon the envelope. This was proved by a witness who saw him sign his name. This envelope was placed in the hands of McKenzie while on the stand. On examining the signature of George Isaacs on the envelope, he was asked how it compared with the signa *532 ture to the letter that Tulsey Jack showed the witness at Taloga, which purported to be signed by the defendant. The witness replied that, “in my opinion, the signature was the same as the one I saw to the letter shown me by Tulsey Jack at Taloga.” Appellant objected, “because the witness is not shown to have ever seen Isaacs write his name, is not qualified by counsel as an expert, or being in any way familiar with Isaacs’ handwriting, or any one else’s.” The bill fails to show that the contents of the letter went to the jury. This is necessary. See, Burke v. State, 25 Tex. Crim. App., 172; Jacobs v. State, 28 Tex. Crim. App., 79; Jackson v. State, 28 Tex. Crim. App., 143. The bill fails to show that McKenzie was not qualified or competent to testify as to the handwriting of the appellant. It simply shows, that appellant made this objection. To be a good bill, it should show that evidence was not adduced showing that McKenzie was competent as, an expert, or that he had seen the appellant write, or that he was familiar with the handwriting of the appellant, and should have also shown that the contents of the letter went to the jury. See, Smith v. State, 4 Tex. Crim. App., 626; Hennessy v. State, 23 Tex. Crim. App., 340; Ezzell v. State, 29 Tex. Crim. App., 521. Counsel for the appellant contends that the court erred in charging the jury that, if the murder-was committed in the attempt to rob, it would be murder of the first degree. Counsel presents this question in another form on motion for a new trial, and contends that the proof failed to show that the murder was committed in the attempted robbery. If the evidence fails to show an attempt at robbery, appellant is not guilty of anything at all. The question, therefore, is: “Does it establish the fact that this murder was, committed in the attempt to rob? Four men had ridden eighty to one hundred miles, armed to the teeth, well prepared for traveling; surrounded the depot for no other purpose on earth than to rob the agent of the money shipped by the appellant to Canadian. When the deceased stepped to the door, and asked one of them to stop, that he wanted to see him, he was fired upon from different directions, and killed. Now, it is contended by the appellant that technically this was not an attempt to rob; that it was simply a preparation to rob; that the proof carries it no further. This may be true, but for their presence, their conduct— all being in furtherance of the conspiracy to rob—this homicide would not have occurred. They were in the commission of a felony. That felony was robbery, and their acts were so closely connected with the robbery as to bring about and produce the conflict which resulted in the death of the deceased. Deceased made no attempt to arrest anybody. He simply remarked to one of the parties that he wanted to see him, and the firing commenced. We believe, within the meaning of Art. 711, Rev. Penal Code, 1895, that what was done by the parties there was an attempt at robbery, within the meaning of that article, and that there was, therefore, no error in so instructing the jury, and in refusing to grant a new trial, because the attempt at robbery was not proved. There are some fifty bills of exception and assignments of error in the record, and we have *533 carefully read them, and consider none of them well taken. We have discussed the questions raised by the appellant which we think worthy of consideration. Finding no errors in the record, the judgment is affirmed.

[Note.—Appellant’s motion for rehearing filed after the above opinion was handed down, was overuled without a written opinion—Reporter.]

Affirmed.

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