The opinion
WOODLEY, Judge
(dissenting).
The only evidence introduced in the trial before the jury was the testimony of a 33 year old Inspector for the Texas Liquor Control Board. His testimony shows that he was in King’s Lounge, in Wichita Falls, on the afternoon of July 21, 1963, engaged in an undercover assignment, when the defendant, a female, in his presence and in the presence of others in the Lounge, did the act charged in the indictment; that is, she did “voluntarily permit one Alford E. Bohannon to use his mouth on Defendant’s sexual parts for the purpose of having carnal copulation.”
It is the view of the writer that the indictment is sufficient to charge the appellant as a principal with Alford E. Bohan-non in the act of sodomy defined in Art. 524 Vernon’s Ann.P.C.
The statute reads in part:
“[Wjhoever shall use his mouth on the sexual parts of another human being for the purpose of having carnal copulation * * * shall be guilty of sodomy, and upon conviction thereof shall be deemed guilty of a felony, and shall be confined in the penitentiary not less than two (2) nor more than fifteen (15) years.”
Under the law of principals, the participants agreeing to the act are equally guilty. Jones and Beckham v. State, 165 Tex.Cr.R. 472 , 308 S.W.2d 48 .
One who agrees to the commission of an offense and is present when it is committed is a principal, regardless of whether he aided in the illegal act. Brown v. State, 146 Tex.Cr.R. 602 , 177 S.W.2d 64 ; Montoya v. State, 150 Tex.Cr.R. 158 , 199 S.W.2d 164 .
The court’s charge, to which there were no exceptions, instructed the jury on the law of principals and required the jury to find that the appellant did the acts charged in the indictment in order to convict.
The jury’s verdict found appellant guilty and assessed the minimum punishment upon undisputed evidence showing that Bo-hannon used his mouth on appellant’s sexual parts and that she not only permitted him to do so but was the principal actor in the crime. This verdict is set aside upon the ground that the formal bill of exception set out in the majority opinion reflects that the trial court prejudicially limited appellant’s argument.
The writer is in accord with the holding in Washburn v. State, 299 S.W.2d 706 . The opinion in that case sets out Washburn’s contention as follows:
“ * * * that the trial court erred in permitting the state to call Andrew H. Nelson, a co-defendant, to the witness stand in the presence of the jury and require him to claim his privilege against self-incrimination and refuse to testify.”
In regard to this contention, this Court said:
“The trial court committed error in permitting the state to call the witness *393 Nelson, a co-defendant, to the stand and require him to claim his privilege against self-incrimination and refuse to testify in the presence of the jury. Such refusal to testify was prejudicial because it could be used as" an incriminating fact against the appellant.”
The Court quoted with approval from 18 Tex.Jur. 238, Sec. 142, as follows:
“Unless the witness has agreed to turn state’s evidence, the prosecution ought not to place him on the stand; to do so and wring from him a refusal to testify, affording to the jury an opportunity to consider the refusal as a circumstance of guilt, has been said to be ‘certainly prejudicial.’ ”
The majority opinion departs from the rule in Washburn and, in effect, declares that the state may call a co-defendant separately indicted as a witness against one charged with acting as a principal with him in the commission of the offense and require him to testify or to claim his privilege against self-incrimination and refuse to testify. The majority give no effect to the fact that both principals are represented by the same lawyer, or to the fact that the witness has not agreed or been asked to agree to turn state’s evidence, or to the fact that unlike the Offerle case, the state was bound to prove, in order to convict the defendant on trial, that the co-defendant the state is criticized for not calling as a witness was also guilty of the act of sodomy.
In Offerle v. State, relied upon by appellant, Tidwell, his co-defendant, had pleaded guilty to the theft of the calf and according to the testimony had stated to the officers that he told Offerle the calf they butchered belonged to him. Offerle’s affirmative defense was that he believed Tidwell’s statement. Under these circumstances it was held that it would have been proper for counsel for Offerle to direct the jury’s attention to the fact that Tidwell had not testified for the state and that the state’s failure to call Tidwell was indicative of the fact that he would adhere 'to his statement that he told Offerle that the calf allegedly stolen from Bridwell’s ranch belonged to him (Tidwell).
Appellant’s co-defendant had not pleaded guilty, and the record indicates that had he testified he would have denied that any act of sodomy occurred.
If appellant had desired to have Bohan-non’s testimony that no act of sodomy was committed, there was available to her the severance statutes, Arts. 651, 652 C.C.P.
She did not seek the benefit afforded by these statutes or request that Bohannon be tried first. Loshe v. State, 160 Tex.Cr.R. 561 , 272 S.W.2d 517 .
I respectfully dissent