Simms v. State

Citations

• 10 Tex. Ct. App. 131

Syllabus

<p>1. Joinder of Offenses—Duty of State to Elect Between Counts. When an indictment contains more counts than onej and they charge distinct felonies, it is the right of the defendant, as soon as the prosecution has developed its proof, to require the State to elect on which count a conviction will be sought. • The election should, as a general rule, be made before the defendant enters upon his evidence.</p> <p>2. Same—Principals and Accomplices.— The first count of an indictment for the murder of one S. charged the defendant as a principal offender, and the second charged that one P. was the princial offender and the defendant an accomplice. When the state closed its evidence in chief, the defense moved that the prosecution be required to elect between the counts. In view of the rule that a party indicted as a principal cannot be convicted as an accomplice, and vice versa, as well as on account of differences in the rules of evidence applicable to such diverse prosecutions, it is held that the motion should have been sustained.</p> <p>3. Same—Murder.—The state was allbwed, over objection, to prove certain acts and declarations of said P., done and made subsequent to the homicide, and when the defendant was not present; and the defendant was found guilty of murder in the first degree “ as principal.” JBeldt that, as such acts and declarations of P. were not competent evidence under the count which charged the defendant as a principal offender, their admission may have been prejudicial to hintj and therefore was material error.</p> <p>4, OtROüM'STANTlA,L Evidence—In cases wholly dependent on circumstantial evidence no definite line of demarcation between proximate and remote facts can be drawn, and the criterion of their competency is merely whether they tend to cast any light, however feeble, upon the subject of the inquiry. See the facts and the opinion in this case in illustration of the latitude allowable in such cases.</p> <p>6. Evidence of Deceased Witness.—What