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 .1001 State, Eads 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.). Silurian Oil Co. v. White (Tex. Civ. App.) 569 .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. 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.). 503 549 380 886 836 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. 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- 892 Sparger, Couch v. (Tex. Civ._App.). 817 862 Stafford v. Cook (Ark.).. 597 State, Johnson v. (Tex. Cr. App.) 554 1 779 ..1065 .1117 535 551 621 Stagner.v. Willis (Tex. Civ. App.). .1115 Standard Milling Co., Gulf Coast Transp. State, Allen v. (Tex. Cr. App.) State, Blackmon v. (Tex. Cr. App.) State, Bruni v. (Tex. Cr. App.) State, Buckhannan v. (Tex. Cr. App.). State, Burns v. (Tex. Cr. App.) 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 (252 S.W.) Page Page .... .1088 State, Watson v. (Tex. Cr. App.) .1118 Voelkel, American Ry. Exp. Co. v. (Tex. State, Willingham v. (Tex. Cr. App.)... 530 .. .... State Bank v. Williams (Tex. Civ. App.).. 222 Walker, Grantham v. (Ark.). Stegall v. State (Tex. Cr. App.). Tartar v. Wesley (Ky.) 446 900 Ward v. Hinkle (Tex. Civ. App.). Taylor, Weaver v. (Tex. Civ. App.).....1117 Texarkana Pipe Works v. Caddo Oil & Re- Western Randolph Road Imp. Dist. v. First 486 469 770 865 641 Wagner, State v. (Mo.). 695 13 Walker v. Ray (Tex. Civ. App.). .1111 543 552 554 745 600 864 667 236 934 W. E. Jamar Seed Co., Todd v. (Tex. Civ. 256 23 Wells, Clooney v. (Mo.).. 72 65 Wells v. Jamison (Tex. Com. App.). ..1023 730 109 928 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.)... 854 Wilson v. Clark (Tex. Civ. App.) 881 327 Todd v. W. E. Jamar Seed Co. (Tex. Civ. Wilson Tel. Co. v. John A. Roebling's Sons 919 Traders' State Bank, Kugle v. (Tex. Civ. Wood, Smith v. (Tex. Civ. App.). 886 App.) Woodruff County v. Road Imp. Dist. No. 14 (Ark.).. 930 Woodward v. Brown (Tex. Civ. App.).... 337 635 Union Electric Light & Power Co., Grzeskoviak v. (Mo.). 364 Urbish, City of Dallas v. (Tex. Civ. App.) York, St. Louis Southwestern R. Co. of 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. Young v. Davis (Ky.). 100 614 Youngblood, Ball v. (Tex. Civ. App.).... 872 Vaudeville Theatre Co., Kehde v. (Mo.).. 969 975 Zenor, Kelley Trust Co. v. (Ark.)................... 39 See End of Index for Tables of Southwestern Cases in State Reports 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 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. |