Thomas v. State

1. —Mistake in Charge Stating Offense. The indictment contained three counts, two for theft and the third for embezzlement. The trial was on the third count, for embezzlement, and the charge of the court related entirely to embezzlement; but, through mistake, the charge stated the offense as “burglary” instead of “embezzlement.” Held, the mistake did not constitute reversible error, as it was not calculated to injuriously affect defendant. 2. —Embezzlement—Principal—Charge—Accessory. Although the law makes the act of embezzlement depend upon agency, yet one who is -not an agent can become a principal in the crime, who is present, by aiding and encouraging the principal to commit the embezzlement; and the fact that such party afterwards received a portion of the money embezzled did not require of the court a charge as to the law pertaining to accessories. 3. —Accomplice Testimony—Charge. Where the court submits to the jury the question as to whether a witness is an accomplice, it is error to fail to instruct the jury as to what constitutes an accomplice.

Lonnie Henderson testified: “I saw the old man Henry Williams and the defendant, Dave Thomas, on the night of December 8, 1902, at the ‘Big 4/ I went with them from the Dig 4’ to the ‘Crooked Shack.’ On the way to the ‘Crooked Shack’ defendant told old man Williams to let’s go to the ‘Crooked Shack.’ On the way down there to the ‘Crooked Shack’ Dave Thomas pnt his arms around the old man and tried to get his money,- and I told him to let the old man’s money alone; he said he wasn’t bothering his money, but just- keeping the old man from falling; and the old man told him he could take care of himself and didn’t need his help, and to take his arms from around him. When- we got over to the ‘Crooked Shack,’ Dave Thomas said to Ben Feinstein, behind the bar, ‘The old man is a friend of mine; he was over at the “Big 4;” he has some money and I brought him over here because I was afraid somebody would rob him [the old man Henry Williams] if I left him over there.’ The old man Henry Williams got a drink and took out his pocketbook and passed it over the counter or bar to Ben and told him to keep it for him until in the morning; and the defendant then said, ‘Keep it for him; he is a friend of mine.’ Ben took the pocketbook and put it in the drawer. In just a short time the old man Henry Williams fell down on the floor, and they drug him out of the saloon into a back room. Ben then took the pocketbook out of the drawer and held it under the counter and held up three bills, they looked like five-dojllar bills to me, and four nickels,. I don’t know whether that was all the money in the pocketbook or not, or whether they were five-dollar bills or not; he then put the money back in the pocketbook and put the pocketbook back in the drawer. I was there the next morning when the old man Henry Williams came in the saloon and asked about his money and his hat. There were present in the saloon at that time J oe Aronoff, Ben Feinstein, Dave Thomas and Bud Gibson. The old man asked for his money that he had left there the night before, and Joe and Ben and defendant said he did not leave any money there last night, and that he was not there last night. They- laughed at him and told him he had been drunk; and defendant told him he had not been there and had- left no money there; that he must have been touched somewhere else. After the old man left, Joe Aronoff took Dave Thomas in a back room and gave him some money. I don’t know how much. Dave Thomas then came out and gave me $1, and told me. to say nothing about this. J oe Aronoff gave me 50 cents and told me to lea-ve town. I saw the policeman there in the storeroom that night, but I didn’t know he was a policeman ; he had on a cap and a blue coat and brass buttons. I thought he was a showman. I had never been to a big town before and had never seen a policeman. I came from Henderson, in Rusk County, and had not been in town long.” Ho further statement is necessary.