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Scott v. State (Tex. Cr. App.).

756

State v. Crumpley (Mo.).

.1119

Scott & Mayhall v. Lubbock Grain & Coal

Co. (Tex. Com. App.)....

164

Security Nat. Bank, Bergeron v. (Tex. Civ.

App.)

856

Security Nat. Bank, Corinth Bank & Trust
Co. v. (Tenn.)

.1001

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State, Eads v. (Tex. Cr. App.)
State, Fields v. (Tex. Cr. App.)
State, Flores v. (Tex. Cr. App.).
State, Forrester v. (Tex. Cr. App.)
State, Galloway v. (Tex. Cr. App.).
State, Gamboa v. (Tex. Cr. App.).
State, Gandara v. (Tex. Cr. App.)
State, Garrett v. (Tex. Cr. App.)

531

759

170

785

516

167

166

527

Sevick, Ramey-Milburn Co. v. (Ark.). Shelton, King v. (Tex. Civ. App.). Shepherd v. Commonwealth (Ky.)

20

194

State, Garrison v. (Tex. Cr. App.) State v. Goodson (Mo.).

511

366

139

State v. Goodson (Mo.).

389

Shepherd v. Newell (Tex. Civ. App.).
Sheridan v. State (Ark.).
Sherman v. Sherman (Ark.)
Shultz Belting Co., Albrecht v. (Mo.).

Silurian Oil Co. v. White (Tex. Civ. App.) 569
Simpson v. Burnett (Mo.).

.1113 State, Gothard v. (Tex. Cr. App.)

508

579

State, Gould v. (Tex. Cr. App.).

772

27

400

State, Green v. (Tex. Cr. App.) State, Gunn v. (Tex. Cr. App.).

499

172

State v. Guye (Mo.)...

955

949

Sims v. Humble Oil & Refining Co. (Tex.
Civ. App.)

State, Hampton v. (Tenn.)

.1007

.1083

Smalley, State v. (Mo.)

State, Hardeman v. (Tex. Cr. App.) State, Harris v. (Tex. Cr. App.). 443 State v. Hays (Mo.).

503

549

380

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886

836 State, Hays v. (Tex. Cr. App.) 662 State, Hinton v. (Tex. Cr. App.). 562 State v. Hogan (Mo.. App.) State v. Hogan (Mo.).

521

525

90

387

Smith Bros. Grain Co., Patterson v. (Tex.

Com. App.)..

.1058

Snow, State v. (Mo.).

629

Southern Surety Co. v. Petrolia Land Co.

(Tex. Civ. App.).

204

South Texas Lumber Co., Dunman v. (Tex.
Civ. App.)..

State, Holcomb v. (Tex. Cr. App.) State, Howard v. (Tex. Cr. App.). State, Howell v. (Tex. Cr. App.). State, Hughes v. (Tex. Cr. App.). State, Huntsman v. (Tex. Cr. App.) State v. Jamerson (Mo.).

512

524

539

774

554

682

274

State v. Johnson (Mo.).

623

Southwestern Oil Development Co. v. Illi-
nois Torpedo Co. (Tex. Civ. App.). 334
Spann, Fulwiler Electric Co. v. (Tex. Civ.
App.)

892

Sparger, Couch v. (Tex. Civ._App.).
Springfield Fire & Marine Ins. Co. v.
Davis (Tex. Civ. App.)

817

862

Stafford v. Cook (Ark.)..

597

State, Johnson v. (Tex. Cr. App.)
State, Karnes v. (Ark.).
State, Keller v. (Tex. Cr. App.)
State, Kelly v. (Tex. Cr. App.)
State, Lamar v. (Tex. Cr. App.)
State, Lamm v. (Tex. Cr. App.)
State, Leon v. (Tex. Cr. App.).
State v. Liolios (Mo.).

554

1

779

..1065

.1117

535

551

621

Stagner.v. Willis (Tex. Civ. App.).

.1115

Standard Milling Co., Gulf Coast Transp.

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State, Allen v. (Tex. Cr. App.)
State, Apodaca v. (Tex. Cr. App.).
State, Armstrong v. (Tex. Cr. App.).
State, Bailey v. (Tex. Cr. App.).
State, Baker v. (Tex. Cr. App.)
State, Bennett v. (Tex. Cr. App.).
State, Benson v. (Tex. Cr. App.).
State, Bird v. (Tex. Cr. App.).

State, Blackmon v. (Tex. Cr. App.)
State, Brent v. (Tex. Cr. App.).
State, Brown v. (Ark.).

State, Bruni v. (Tex. Cr. App.)

State, Buckhannan v. (Tex. Cr. App.).
State, Bullard v. (Ark.).

State, Burns v. (Tex. Cr. App.)
State v. Burrell (Mo.).

State v. Bryant (Mo.).

State v. Cason (Mo.).

...

State, Massey v. (Tex. Cr. App.) .1053 State, Mince v. (Tex. Cr. App.) 356 State v. Mitchell (Mo.)...

510 State, Mitchell v. (Tex. Cr. App.) 537 State, Moore v. (Tex. Cr. App.) 797 State, Nixon v. (Tex. Cr. App.). 899 State, Nolley v. (Tex. Civ. App.) 505 State, Nowells v. (Tex. Cr. App.) 513 State, Owens v. (Ark.).

777 State, Patterson v. (Tex. Cr. App.) .1117 State, Pierce v. (Tex. Cr. App.) 767 State, Preston v. (Tex. Cr. App.) 790 State, Rains v. (Tex. Cr. App.). 533 State, Reeves v. (Tex. Cr. App.). 540 State, Royal v. (Ark.).

751

State, Lyons v. (Tex. Cr. App.). State, McCleskey v. (Tex. Cr. App.) State v. McIntyre (Mo.)..

518

542

386

519

550

564

383

..1117

168

..1067

821

550

25

.1118

.1063

507

558

781

601

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(252 S.W.)

Page

Page

....

.1088

State, Watson v. (Tex. Cr. App.)
State, Whitten v. (Tex. Cr. App.)

.1118 Voelkel, American Ry. Exp. Co. v. (Tex.
526 Com. App.).. . .. .

State, Willingham v. (Tex. Cr. App.)... 530
State, Wimberley v. (Tex. Cr. App.).... 787 Waddle, Logan v. (Mo. App.)
State, Wood v. (Ark.)...
897 Wade v. State (Tex. Cr. App.).
State, Wortham v. (Tex. Cr. App.) 1063 Waggoner v. Magnolia Petroleum Co.
State, Yarbrough v. (Tex. Cr. App.) 1069 (Tex. Civ. App.).
State v. Yates (Mo.).

..

....

State Bank v. Williams (Tex. Civ. App.).. 222 Walker, Grantham v. (Ark.).
State ex inf. Brummall ex rel. Powell v.
Gromer (Mo.)...
705
State ex rel. Arnold v. McCune (Mo.).. 657
State ex rel. Capital City Water Co. v.
Public Service Commission of Missouri
(Mo.)

Stegall v. State (Tex. Cr. App.).
Steininger Const. Co. v. Bates (Ark.)..
Stevens, State v. (Ark.).
Strang v. Biggers (Tex. Civ. App.).
Street Imp. Dist. No. 340, Poe v. (Ark.)
Strong, Ex parte (Tex. Cr. App.)..
Stubblefield v. State (Tex. Cr. App.).
Sumner v. Jester (Tex. Civ. App.)...
Sutherland v. Board of Education of City
of Corbin (Ky.)....

Tartar v. Wesley (Ky.)

446

900 Ward v. Hinkle (Tex. Civ. App.).
826 Ware v. State (Ark.).

Taylor, Weaver v. (Tex. Civ. App.).....1117
Temple, Newberger Cotton Co. v. (Ark.)
Ternetz v. St. Louis Lime & Cement Co.
(Mo.)

Texarkana Pipe Works v. Caddo Oil & Re-
fining Co. of Louisiana (Tex. Civ. App.) 813
Texas Co., Foley & Whitehill v. (Tex.
Civ. App.)...

Western Randolph Road Imp. Dist. v. First
Nat. Bank (Ark.)..

486

469

770

865

641 Wagner, State v. (Mo.).

695

13

Walker v. Ray (Tex. Civ. App.).
Walker v. State (Tex. Cr. App.)
Walker v. State (Tex. Cr. App.).
Walker v. State (Tex. Cr. App.).
Wallace, Jackson v. (Tex. Com. App.)
Wallace v. McCartney (Ark.).
513 Walton v. Lopez (Tex. Civ. App.)
618 Ward v. Fessler (Mo.).

.1111

543

552

554

745

600

864

667

236

934

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W. E. Jamar Seed Co., Todd v. (Tex. Civ.
App.)

256

23

Wells, Clooney v. (Mo.)..

72

65

Wells v. Jamison (Tex. Com. App.).
Wells, Kaemmerer v. (Mo.).
Wesley, Tartar v. (Ky.).

..1023

730

109

928

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Williams v. Craig (Tex. Civ. App.) Williams v. Hyatt (Tex. Civ. App.).. 249 Williams, State Bank v. (Tex. Civ. App.) 222 507 Williams Lumber Co. v. Burgess (Ark.).. 353 1062 Williford, Beckham v. (Tex. Civ. App.).. 229 .1118 Willingham v. State (Tex. Cr. App.). 530 Willis v. New York Life Ins. Co. (Mo. App.) Willis, Stagner v. (Tex. Civ. App.). Wilson, Citizens' Garage Co. v. (Tex. Civ. App.)

876

861

995

1115

186

Tindel, Murchison v. (Tex. Civ. App.)...
Todd, Long v. (Tex. Civ. App.).

854

Wilson v. Clark (Tex. Civ. App.)

881

327

Todd v. W. E. Jamar Seed Co. (Tex. Civ.
App.)

Wilson Tel. Co. v. John A. Roebling's Sons
Co. (Ark.)..

919

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Traders' State Bank, Kugle v. (Tex. Civ.

Wood, Smith v. (Tex. Civ. App.).

886

App.)

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Woodruff County v. Road Imp. Dist. No. 14 (Ark.)..

930

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Woodward v. Brown (Tex. Civ. App.).... 337
Wortham v. State (Tex. Cr. App.)..... .1063

635

Union Electric Light & Power Co., Grzeskoviak v. (Mo.).

[blocks in formation]

364

Urbish, City of Dallas v. (Tex. Civ. App.)
Utley, Grismore v. (Ark.)...

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York, St. Louis Southwestern R. Co. of
Texas v. (Tex. Civ. App.).

890

Valley Lumber Co. v. Westmoreland Bros. (Ark.)

Yorktown Independent School Dist., Gerhardt v. (Tex. Civ. App.).

197

609

Young, Bender v. (Mo.).

.....

691

Van Houten Lumber Co. v. Planters' Nat.
Bank (Ark.)..

Young v. Davis (Ky.).

100

614

Youngblood, Ball v. (Tex. Civ. App.).... 872

Vaudeville Theatre Co., Kehde v. (Mo.).. 969
Vaughn, State v. (Mo. App.).

975 Zenor, Kelley Trust Co. v. (Ark.)...................

39

See End of Index for Tables of Southwestern Cases in State Reports

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Taylor Karnes was convicted as accessory 1. Criminal law 814(2)-Defendant entitled to instruction on matters presenting defense, before the fact to the crime of robbery, and though contradictory of his own statements. he appeals. Affirmed. If testimony of a substantial nature presents a defense, defendant is entitled to instruction thereon, although it contradicts his own testimony.

2. Criminal law 72, 73-One counseling another to commit crime cannot escape responsibility by claiming it was not committed at time and place or in manner advised.

One cannot aid and advise another to commit a crime, and, after inducing him to do so by advice and encouragement and assurance of support, escape responsibility by saying it was not committed at the time and place or in the exact manner he had advised, and his withdrawal of the aid and assistance which induced its commission must not be a mere mental process, but must be communicated to the person committing the crime before its commission.

W. G. Bray, of Senath, Mo., and Block & Kirsch, of Paragould, for appellant.

J. S. Utley, Atty. Gen., and John L. Carter and W. T. Hammock, Asst. Attys. Gen., for the State.

SMITH, J. Appellant, Karnes, was convicted as accessory before the fact to the crime of robbery committed by one Horace Dill on one W. W. Black on October 15, 1921. Dill had entered a plea of guilty to the crime of robbery, and was serving a sentence in the penitentiary when he was called as a witness against Karnes.

Dill testified that he and Karnes lived in Missouri, and that one Dozier Skelton, a brother-in-law of Karnes, lived on Black's farm. Skelton told Karnes that Black ha3. Criminal law 814(19)-Refusing instruc-bitually carried on his person from $3,000 to tion not error in view of evidence that de- $4,000, and these three discussed in the fendant had not notified co-conspirator of spring of 1920 a plan to rob Black. The withdrawal from conspiracy. discussion was renewed in the fall of that year, and the three met in Wynne to perfect the details of the robbery. They agreed the best time to commit the crime was when Black was hauling cotton. Their first plan

miscarried because Black did not haul the

In a prosecution of one as accessory before the fact to the crime of robbery, where by no reasonable interpretation of the evidence could it have been found that defendant withdrew from the conspiracy to rob the victim, and notified his co-conspirator of that fact, there was no error in refusing an instruction that, even cotton to the place where they anticipated though defendant advised his co-conspirator to he would haul it. They again met, and it was commit the crime on a named date, if the co- agreed that Skelton should write Karnes conspirator abandoned the commission of the when Black had another load to haul. crime on that date, and defendant likewise aban- Karnes received a letter from Skelton that doned its commission in good faith, and had left Black would haul another load on Wednesthe state and was in a foreign state on the date of its commission, and the co-conspirator had day or Thursday, and the parties prepared notice that defendant had abandoned the in- to commit the crime on one of those days. tent to commit, and the co-conspirator there- Black did not haul cotton on either day, so after committed the crime, then defendant was Dill and Karnes went to the street fair at not guilty. Wynne on Thursday night, where they met 4. Criminal law 511(1)—Evidence held suf-two young women and an older woman. Dill ficient to support that of accomplice testifying and Karnes had become impatient over the for state. lack of opportunity to rob Black, and deterIn a prosecution of one as accessory before mined to go home on Friday, but before doing the fact to the crime of robbery, evidence held so Karnes went to the gin on Friday, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
252 S.W.-1

came back and reported that Black and but he refused to discuss the matter with Skelton had arrived in Wynne. Dill and Karnes at that time, because Karnes was Karnes put on their overalls, and met Skelton drunk. He returned to Karnes' home that for a final confernce, at which the plan to evening, and found Karnes somewhat soberrob Black that day was perfected. Karnes insisted that witness Dill, and not himself, should go out on the wagon with Black, be cause Black would know Karnes, as Karnes had been at Black's home a few days before. Karnes was to remain at Wynne, while Dill and Skelton went in the wagon with Black, and they were to rob Black on the way to Black's home; and it was agreed that Karnes would meet Dill at a place on the railroad between Fair Oaks and Tilton, these being stations on the Cotton Belt Railroad, and that Dill would indicate the point on the railroad near which he would be in hiding by a small pile of torn paper placed in the center of the railroad track.

ed, but sick, and told him that he had robbed Black. A short time afterwards Karnes sent another brother-in-law of his back to Cross county with Dill to look for the money, but they found only one of the rolls of bills. Dill testified that the roll which was found was divided equally between himself and Karnes and Skelton, except that he was allowed to keep the $51 in consideration of the fact that he had personally committed the robbery, but that Skelton was arrested for this crime, and, upon that fact being reported to him by Karnes, he agreed that Skelton might have the $51 to aid him in his trial, and gave the $51 to Karnes to be used for that purpose.

Dill admitted that he never saw Karnes after leaving him in Wynne until he saw him in Missouri after the robbery, and he admitted that he failed to see Karnes at the place appointed for the meeting after Black was to have been robbed on the way to Black's home in the wagon. Dill testified that Karnes told him in Missouri that his nerve failed him after he reached Fair Oaks, and, instead of waiting between that place and Tilton, as he had agreed to do, for Dill to appear, he went home.

After leaving Karnes at Wynne Dill did not see him again until he saw him in Missouri; and after separating from Skelton at the wagon at Black's home he did not again see Skelton until the robbery had been committed.

Karnes denied Dill's story in its entirety, and testified that he had never been in Cross county until he was arrested for the robbery of Black and carried there to be tried on that charge, and offered testimony which, if believed, established very clearly his defense that he was in Missouri during the time the state's witnesses located him in Cross county.

After Dill had put on his overalls Karnes took charge of Dill's street clothes, and the men separated to meet again after the robbery at the point indicated by the pile of paper. Skelton knew the road Black would travel from Wynne to his home, and was to indicate to Dill when a favorable time had arrived and place had been reached for the robbery, but as they drove along Skelton shook his head in protest from time to time, indicating that the time was not propitious on account of the number of people they were meeting and passing on the road, and they arrived at Black's home without an opportunity having been afforded for Dill to rob Black; but before getting out of the wagon Skelton whispered and told Dill to come back the next morning and bring Karnes with him. Dill went to the place appointed for his meeting with Karnes, but failed to find Karnes, so he returned to Fair Oaks, and spent the night there, and returned to Black's farm the next day, and robbed Black the next day in the following manner: He told Black he thought of buying his farm, and Black proceeded to show it to him. More than one opportunity was afforded, but Dill's nerve failed him, but finally, on a third trip from the house into some woods, they came to a ditch, and here the crime was committed. Dill was walking behind Black, when he struck him over the head with his pistol, rendering Black unconscious. This occurred about 11 o'clock Saturday morning. The pistol with which he assaulted Black had been furnished him by Karnes. Dill searched Black's prostrate body, and found $1,181 on The court gave at defendant's request corhis person. He hurriedly made his way to the rect instructions on the character and quanrailroad, and, after counting off $51 of the tity of testimony necessary to corroborate the money, he divided the remainder into two testimony of an accomplice to support a conrolls, and hid each roll in a pile of cross-ties.viction; but the court refused to give at deHe hid the pistol with one of the rolls of fendant's request instructions numbered 5, money, and went to Paragould on the train, 6, and 7. These instructions deal with the where he spent the night. The following day same phase of the case, and we set out inhe went to Missouri, and to Karnes' home. struction numbered 7, which is typical of Karnes asked him if he had gotten the money, the other two. It reads as follows:

The two girls with whom Dill and Karnes went to the fair identified Karnes, as did also the older woman, and three other witnesses, including Black's wife, also identified him as the man they had seen with Skelton a few days before the robbery. The identification by three of these witnesses was positive and unequivocal. The other three testified they thought Karnes was the man, but they were not certain.

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