Graves v. State , 123 Tex. Crim. 226 ( 1933 )

Conviction for being an accomplice to the crime of burglary; punishment, two years in the penitentiary.

Appellant was found in possession of property recently theretofore stolen from the house which was burglarized. He made no explanation of his possession when first questioned, and did not testify on the trial. Two boys — sixteen and nineteen years of age — testified in detail that appellant suggested to them the burglary of said house, the door to enter, the use of a piece of iron which he had placed near said door to effect entry, the kind of property they would find inside, and that appellant agreed to buy from them such property when stolen and delivered to him. They testified that following said burglary they delivered said property to appellant, and that he paid them in part and promised to pay them the balance. Appellant's business was that of a junk dealer. The owner of the house testified to its burglary, the entry at said door, the loss of the property described by the boys, and its subsequent recovery, part of it being found in possession of appellant and part being brought from a neighboring town, with no explanation of how it got there, except from one of said boys that appellant took said property to said town and there sold it. The sheriff of the county testified that he found a piece of iron that had been used to prize open the door of the burglarized building, and that he saw tracks leading from said house, etc.

We are confronted with the question as to the sufficiency of the corroboration of the accomplice witnesses. Appellant was indicted as an accomplice, that is, it was charged in the indictment that the house in question was burglarized by said boys, but that prior thereto appellant advised, commanded, and encouraged them to commit said offense; he not being personally present when same was committed. Just what should be held corroboration sufficient in such case is not easy to say. The two boys who testified for the state were accomplice witnesses. The rule is laid down by statute, article 718, C. C. P., that there must be in the case "other evidence tending to connect the defendant with the offense committed." What do we mean by "the offense committed?"

Appellant seems to contend that by this term is meant only the agreement to commit; the urging, or advising, or encouraging to commit, the alleged burglary. This can not be sound. In Cooper v. State, 69 Tex.Crim. Rep., Judge Davidson lucidly and correctly calls attention to and draws the distinction between the offense of conspiracy and that of being an accomplice to a given crime, bringing out strongly the point that it takes more — both in averment and proof — to constitute the latter offense than the other. The offense of conspiracy is complete when the parties thereto have agreed to commit a felony. Not so in this case. There must be here averment and proof that a burglary was committed, and that prior thereto the appellant advised or encouraged those so doing to commit said offense.

It is said in many cases that to be sufficient the corroborative evidence need not be by itself sufficient to convict, nor need it corroborate the testimony of the accomplices in detail. Middleton v. State, 86 Tex. Crim. 307; Thomas v. State, 89 Tex.Crim. Rep.. Circumstances may furnish corroboration sufficient. Boone v. State,90 Tex. Crim. 374. We know of no authority holding it necessary that the evidence relied on as corroborative must extend to every part in or element of "the offense committed." The authorities hold to the contrary. Without going into details further, we have in this case testimony deemed sufficient in many cases which might be cited to show the absolute guilty connection of appellant with that material part of the offense here charged or committed, towit, the burglary of the house, so as that upon same he might be convicted of said offense of burglary. That is to say, we have here uncontradicted proof from witnesses other than the accomplices of appellant's possession recently after same was taken from said house, of the property of said owner, without any suggestion of explanation on appellant's part of how he came by such property. Such testimony is, in our opinion, sufficient to corroborate that of the accomplices, and tends to connect appellant with "the offense committed," towit, being an accomplice to the crime of burglary.

Appellant's next contention, based also on an exception to the charge, is that the court below should have applied the doctrine of reasonable doubt in paragraph eight of the charge wherein the court told the jury that they could not convict unless they believed there was other testimony in the case tending to connect appellant with the offense, if any, committed. The reasonable doubt was plainly presented in paragraph seven of the charge, wherein the law was applied to the facts of the case, and again in paragraph ten of the charge, where said doctrine was applied to the whole case. We think this sufficient.

Appellant next urges that the charge was erroneous in not telling the jury that the corroboration, to be sufficient, must have been as to material matters. The charge followed the form approved in cases too numerous to mention, and told the jury they could not convict on the testimony of the accomplices, unless the jury believed said testimony to be true, and that same showed the guilt of appellant, and further told them that they could not then convict unless they further believed that there was other testimony in the case corroborative of that of the accomplices and tending to connect appellant with the offense, if any, committed; and that the corroboration was not sufficient if it merely showed the commission of the offense. Standfield v. State, 84 Tex.Crim. Rep., and Goodwin v. State, 38 S.W.2d 806, are cited. It was not intended in the Standfield case to change the rule applicable to charges on accomplice testimony laid down in Oates v. State,48 Tex. Crim. 131, and approved and followed in many subsequent cases collated in Goodwin's case, supra, in which a charge omitting the word "material" was approved. Appellant cites Denson v. State, 47 Tex.Crim. Rep.. We fail to see the application. No witness in that case testified to finding in the possession of the accused the property, the fruits of the burglary, recently taken from the burglarized house. The state in that case relied on proof of certain statements of the accused as corroboration, which this court deemed in no way corroborative. Weatherred v. State, 100 Tex.Crim. Rep., is also cited. We have examined this case, and find nothing in same opposing the conclusion we have announced above.

Whetstone v. State, 79 Tex.Crim. Rep., opinion by Judge Davidson, is in principle much like the one before us. Judge Morrow in Meredith v. State, 85 Tex.Crim. Rep., says: "The question here is not one of the sufficiency of the circumstances to show guilt, but their cogency as tending to corroborate the accomplice testimony." In Fitzgerald v. State, 87 Tex.Crim. Rep., we said that the sufficiency of the testimony to corroborate that of the accomplice, being primarily for the jury, would not be disturbed by this court under the facts. See, also, Hunt v. State, 89 Tex. Crim. 211; Lopez v. State, 92 Tex.Crim. Rep.; Mehlman v. State, 92 Tex.Crim. Rep..

There is another rule well settled, which has often been given application, same being a rule of exclusion under which the testimony of the accomplice is laid aside and the other testimony examined to see if there be left facts or circumstances tending to connect the accused with the crime charged. We are of opinion that, if we left out the testimony of the accomplices in this case, there still remains the fact that appellant was found in possession of the recently stolen property, of which possession he made no explanation, and that this, added to the proof showing that there was in fact a burglary, is sufficient to tend to connect appellant with the crime charged. On any fair theory we believe that there is in this case testimony tending to connect appellant with the commission of "the offense committed," towit, being an accomplice to the crime of burglary.

Finding no error in the record, the judgment will be affirmed.

Affirmed.