William Whitford v. The State, 24 Tex. Ct. App. 489

Hurt, Judge. Whitford, Neiderluck alias Miller, Edward Levi and Frank Hawkins were jointly indicted for conspiracy to commit burglary. Appellant Whitford was tried alone, a severance being had, was convicted and appeals to this court. In bar to this prosecution appellant interposed a plea of conviction for the burglary. Upon motion of the district attorney this plea was stricken out, and appellant excepted. Was the plea a bar, conceding it to be true, to the prosecution for conspiracy? Appellant was convicted of the substantive offense, to wit, burglary as a’principal, not as an accomplice.

Being placed on trial for conspiracy to commit the same burglary, will the conviction of the burglary as a principal bar the prosecution for the conspiracy? We have examined all the authorities accessible to us at this place,, but have failed to find in any work the precise question presented or discussed. The doctrine of merger does not solve the question, but the doctrine of “ carving ” does to some extent aid in its solution. Says Mr. Bishop: “ There is a difference between a crime and a criminal transaction. A criminal transaction may be defined to be

an act or series of acts proceeding from one wrongful impulse of the will of such a nature that one or more of them will be indictable. * * * ■ In reason there may be any number of distinct crimes in a single criminal transaction. This comes from the fact that the words of our language being limited, while the transactions of life may almost be termed infinite in variety, and the lines to be drawn around specific offenses being necessarily incomparably more limited than the words, it is impossible there should be an exact outline of crime whose circumference shall exactly coincide with every criminal transaction.

The consequence is that the law does, what it must, declare this combination a fact and intent to be indictable, then another combination, and another, and so on, until it is supposed to have proceeded far enough, when it stops. And when this is done, it is impossible the inhibitions should be so distinct that no one shall embrace anything forbidden by another. Therefore it is established doctrine that more than one offense may be committed by a man in one transaction.

Whether a prosecution for one crime carved out of the one transaction should be held to bar an indictment for another crime carved out of the same transaction is a different question; but the authorities appear to be that in some circumstances it will be, and in others it will not.” Now, in harmony with these principles our code has carved two offenses from this one criminal transaction.

It has declared that the offense of conspiracy is complete if two or more persons positively agree between themselves to commit burglary, though the burglary is not committed. (Penal Code, arts. 800, 801, 802, 804.) Under what circumstances will a conviction for one cause carved out of one transaction bar an indictment for another, when carved out of the same criminal transaction? Mow, if A steals a horse and saddle at the same time, a conviction for the one bars a prosecution fcr the other. This is well settled and plain sailing.

But suppose A, B and C, conspire to steal three horses from the same stable and ride them out of the city, and with a view of carrying out this criminal transaction they steal .three saddles the night before the theft of the horses, certainly a conviction for the theft of the horses would not bar an indictment for the theft of the. saddles; and this would be so, though the theft of the saddles was a part of the same criminal transaction. On the other hand let us submit an illustration.

Suppose appellant had been convicted of the burglary as an accomplice, by proof of the very facts which make up the conspiracy, would such a conviction bar an indictment for the burglary? An accomplice is one who agrees with the principal offender to aid him in committing the offense, though he may not have given him such aid. A, B and O enter into a positive agreement to aid one another in murdering E. A commits the murder; B and O are accomplices, the fact that -the agreement was positive, and that each would aid in the commission of the offense would not alter the case; all not present would be accomplices.

But to convict B and O as accomplices, the State would have to rely upon the facts constituting the conspiracy. This would be so in the supposed case, but not in all cases by any means, for quite a number of acts may constitute the actor an accomplice which would not technically constitute “a conspiracy.” We would hold that, in the supposed case, a conviction for the substantive offense as an accomplice would bar an indictment for the conspiracy. Upon what principle? Obviously upon the principle that a party can not be constitutionally convicted twice for the same acts and intent.

The case in hand does not occupy this attitude. Appellant was convicted of the burglary as a principal offender, and while the conspiracy may have been adduced in evidence in order to establish the burglary, and in connection with other facts to prove the guilt of appellant as a principal, yet this would not be a conviction upon the acts' constituting the conspiracy.

For upon trial for an. offense, evidences of other offenses is very frequently and justly received, and because proof of other offenses has been drawn upon to aid in convicting of a certain crime, this fact does not bar a prosecution for the other offenses. Opinion delivered December 14, 1887. We are of opinion that under the facts of this case, to wit, that appellant was convicted as principal for the burglary, that there was no error in sustaining the district attorney’s motion to strike out the plea. The indictment is good and not subject to the objection that it is duplicitous.

We find no error in the judgment, and it is affirmed. Affirmed.