Dallas Morning News
12 February 1893
TECHNICAL DISTINOTIONS BETWEEN
FELONIES AND MISDEMEANORS
The Court Holds That the Evidence Com-
plained of Was Admissible and Amply
Supports the Verdict
Court of Criminal Appeals
J.M. Hurt, presiding judge; W.L. Davidson and E.J. Simkins, judges;
R.L. Henry, assistant attorney general: W.A. Hudson, clerk; Dallas Term.
John T. Carlisle vs. state; appeal from Grayson County.
In 1880 in Lee County, Texas, one Samuel Sparks was murdered in
the town of Giddings at night. J.M. Brown was sheriff of said county.
In 1887 or 1888, Brown having moved to Fort Worth, indictments were presented
against Ed Myers and J.T. Carlisle for the murder of Sparks. At the
time of the killing Ed Myers was deputy sheriff for Brown. In the
fall of 1888 Myers was tried, found guilty of murder in the second degree
and sentenced to twenty years in the penitentiary.
On the trail of Myers, W.T. Sharman, the only eye witness to the
killing, testified that he "was an eye witness to the homicide of Sparks;
that he was standing in a few feet of Sparks when he was killed; that Carlisle
and Sparks were walking arm in arm toward Sparks' horse, which was hitched
nearby, and that Myers slipped up behind them and the night being dark,
he stooped to get Spark's head above the horizon and fired a pistol directly
at Sparks' head, the ball entering the base of the brain and ranging upward
and forward; that Sparks fell dead, whereupon Carlisle and Myers ran away;
that he recognized Carlisle by his voice." There was deadly enmity
existing between J.M. Brown and Sparks.
In the city of Denison, Grayson county, between the hours of 1 and
2 o'clock a.m., on the night of the 28th of April, 1902, while lying in
bed with his wife and infant child, W.T. Sharman was shot with a shotgun
by some person standing upon a ladder placed against the house, shooting
over the top of the window sash, which had been lowered about six inches.
Charles Luttrell was indicted as principal, tried and convicted
of murder in the first degree with the death penalty, appealed to this
court and the judgment was affirmed.
On May 25, 1892, John T. Carlisle was indicted, being charged as
an accomplice, also for the murder of W.T. Sharman was on the 29th of October,
1892, tried and convicted of murder in the first degree with the death
penalty assessed against him also. From this conviction and judgment
The acts constituting appellant an accomplice, occurring in Collin
County, counsel for appellant contends that Grayson County, the county
of the homicide was without authority to try the case. If an accomplice
to a felony be guilty of a distinct offense from the felony committed by
his principal the position of counsel is well taken.
We have no definition of definition of a crime named or called "accomplice,"
but we are informed by our code what acts and things will make a person
doing them an accomplice to all felonies, to which there can be an accomplice.
We are aware that there are numerous opinions of learned courts
strongly intimating that an accessory before the fact (our accomplice)
is guilty of a distinct offense from that of his principal. We desire
to notice the reason or legal ratiocination of several of these opinions.
The following proposition is supported by a strong line of authorities:
Accessory before the fact in one state to crime committed in another cannot
be punished in the state where the substantive crime is committed.
The reasoning by which this proposition is sustained is, that as the acts
constituting a person an accessory occurred in a state other than that
in which the crime was committed by the principal.
Let us examine this subject in the light of the same authorities
which support the above proposition a little further. A lives in
Texas. He procures B, who also lives in Texas, to go to Missouri
and there commit an act which is a felony in Missouri. B is innocent
of anything wrong in what he does. These same authorities hold that
Missouri would have authority to try and punish A. Upon what ground?
Because A would be the principal. Again, A employs B to go
to Missouri and there commit a misdemeanor. B, with full knowledge
of the criminal intent of A, would be guilty as a principal, and as it
was a misdemeanor all would be principals and Missouri would have authority
to punish A, when in fact A had done no act whatever in Missouri, except
through B. Again, A sends B to Missouri armed and equipped or the
purpose of murdering C, being instigated thereto by A. Missouri would
not have authority to try and punish A, because all of his acts were don
in Texas and because he was accessory and not principal. Now or the
dilemma; Suppose Missouri should by statute make accessory before the fact
principals, as several states have done, then she would have authority
to try and punish A for the murder of C when A had done no act in Missouri
personally, acting alone through his guilty agent B.
What is the result of such doctrine? It is that the power
or authority to punish acts committed beyond the border of the state which
are crime within the state, depends upon technical distinctions between
felonies and misdemeanors, accessories and principals or whether the agent
was guilty or innocent, and not upon the fact that the criminal act was
or was not committed in the state.
There is another line of authorities resting upon solid foundation.
The doctrine is this, that distinctions between accessories and principals
rest solely in authority being without foundation either in actual reason
or the ordinary doctrine of law. For the general rule of law is that what
one does through another?s agency is to be regarded as done by himself.
In this there is no distinction between the punishment of an accomplice
and a principal. Why? Because the crime is the same. In morals
there are circumstances in which we attach more blame to the accomplice
than to his principal. As when a husband commands his wife or master
his servant, to do, for his benefit, a criminal thing, which in his absence
is done reluctantly through fear or affection overpowering a subject mind.
That the crime committed by the accomplice is the same committed by his
principal is evident. This proposition rests upon solid legal ground.
In 1 Broom's Legal Max., second edition, 643, we find this maxim: "The
principal of common law qui facet per allium, facet per se, is of universal
application, both in criminal and civil cases." If appellant be guilty,
of what offence is he guilty? He is guilty of murder of the first
degree? Simply because he, with his malice aforethought expressed,
through his agent and tool, Luttrell, killed W.T.Sharman. He is guilty
because Luttrell's act was his act, Luttrell being his agent. Appellant
is guilty of the murder of Sharman in Grayson county, though the acts constituting
him an accomplice may have all occurred in Collin county. Why?
Because when his agent Luttrell shot and killed Sharman in the city of
Denison, Grayson County, it was appellant also who, through Luttrell, shot
and killed him in Grayson County.
The correctness of this doctrine is clearly supported in the death
of Uriah, which was caused by Davis. The Lord, speaking through Nathan,
said to David: "Wherefore hast thou despised the commandment of the Lord
to do evil in his sight? Thou hast killed Uriah, the Hittite, with
the sword and hast taken his wife to be thy wife, and hast slain him with
the sword of the children of Ammon." Now David was not present when
Uriah was killed. David did not with his own hands slay Uriah, with
a sword, but when Joab placed Uriah in a position in which death was inevitable
and thereby had him killed, under the command of David, David killed Uriah
with a sword just as if he had slain him with his own hands. We are
of the opinion that the offense of the accomplice and his principal is
the same, and if at all, his crime was murder of the first degree, committed
in Grayson County, and hence the venus of the case was in Grayson county.
Some further observations on this subject. We desire to call
attention to the very wise remark of Judge Marcy in People vs. Mather,
4 Windle 228 and 229. He says: "Writers on criminal law make some
difference between the offense of principal and accessory but it is chiefly
as to the order and mode of proceeding against them."
By statute of New York it is provided that all suits, informations
and indictments for any crime of misdemeanor, murder excepted, should be
brought within three years after the commission. The word "murder"
was held to include, as well accessories before the fact, as principals.
If an accomplice is guilty of a distinct felony from that of his
principal, then a prosecution for being an accomplice to murder is barred
by three years, for such an offense in not named in the statute regulating
The indictment is sufficient and not obnoxious to the objections
made to it. The evidence complained of under the circumstances of
this case was admissible. The evidence only supports the verdict.
The judgment is affirmed. J.M.Hurt, P.J.