Walker v. State , 94 Tex. Crim. 653 ( 1923 )

The State asks a rehearing herein and cites cases in which we have approved charges similar to that given in the instant case for the giving of which this reversal was ordered. We have examined said authorities. The Forson case, 90 Tex. Crim. 271, 234 S.W. Rep. 913, a burglary case, shows an exactly similar charge to that now under consideration herein and was tried before the same learned trial judge who presided in the instant trial, and our approval of the charge in the Forson case may be responsible for same having been given in the case before us. In our view, however, a careful analysis of said charge, which is quoted in our original opinion, must lead to the conclusion that it fails to measure up to a correct statement of the statutory requirement in regard to evidence sufficient to corroborate an accomplice, that is, it does not tell the jury that the corroborative evidence must tend to connect the accused with the commission of the offense. These words occur in the charge as given but in such connection as that the jury who were laymen, might easily become confused. What would be deemed sufficient corroboration under said charge? The answer might be in terms of the charge under discussion "proof of such facts and circumstances as tend to support the testimony of the accomplice and which satisfy the jury that he is worthy of credit as to those facts, essential to constitute the offense of murder and which tend to connect the defendant or defendants with the commission of the offense charged, satisfies the law" etc. The danger and mistake of such a charge is thus made to appear by the transposition of a comma, for it needs no argument to demonstrate that the jury may not convict on the testimony of an accomplice, whose evidence is corroborated no further than is necessary to satisfy the jury that the accomplice is worthy of credit as to those facts which are essential to constitute the offense of murder and which tend to connect the defendant with such crime. If the purpose of the lawmakers had been to only require that the jury be satisfied that the accomplice was worthy of credit, they would have said so, but they did not. The charge under consideration is so worded as in effect to say that the test of corroboration is, — does it satisfy the minds of the jury that the accomplice is worthy of credit. This is not the test laid down in the law. Murphy v. State, 65 Tex.Crim. Rep., and Cole v. State, 70 Tex. Crim. 459, 156 S.W. Rep. 929, present similar charges; the Oates case, 67 Tex.Crim. Rep., 149 S.W. Rep. 1194, does not. There are other things in the Forson, Murphy and Cole cases, supra, which may be permitted to stand in so far as said opinions conflict with this one, they will be overruled.

Appellant requests a modification of our opinion in that he asks an expression as to whether we deem the evidence sufficient to support the conviction. We decline to express any opinion as this would require from us a discussion at length of many features of the case and the weight thereof which would better be left until we are confronted with that proposition in a case tried entirely in accordance with the law.

The motion of the State and of the appellant will both be overruled.

Overruled.