Henderson v. State , 97 Tex. Crim. 247 ( 1923 )

Our attention is directed to some matters which were not discussed in the original opinion, only one of which, however, will be considered. It is asserted that the charge upon accomplice testimony is erroneous. Timely exception was presented thereto, one particular objection being to the use of the word "alone" as intimating that the accomplice testimony only might be sufficient to warrant a conviction, the other objection being that the charge is not a pertinent application of the law of accomplice testimony under the facts of this case. Upon original submission the importance of this assignment escaped us. The charge criticised is in the following language:

"You are charged that the witness, J.H. Estes, is an accomplice. Now, you can not convict the defendant upon his testimony alone, unless you first believe that his testimony is true and shows that the defendant is guilty as charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the accomplice's testimony, tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense."

In lieu of the charge given the following special charge was requested and refused:

"A conviction cannot be had upon the testimony of an accomplice unless the jury first believe that the accomplice's evidence is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission. You are charged that the witness J.H. Estes was an accomplice, if any offense was committed, and you are instructed that you can not find the defendant guilty upon his testimony unless you first believe that the testimony of said Estes is true and that it shows the defendant is guilty as charged in the indictment; and even then you can not convict the defendant unless you further believe that there is other evidence in the case, outside the evidence of the said Estes, tending to connect the defendant with the commission of the offense charged in the indictment, and then from all the evidence, you must believe beyond a reasonable doubt that the defendant is guilty."

The requested charge was evidently copied from Brown v. State, 57 Tex.Crim. Rep., 124 S.W. 101, as the language is identical. Where appropriate, (that is, where the accomplice testimony, if true, does show a completed offense, and defendant's guilt thereof) the charge approved in the Brown case (supra) has never been criticised so far as we know. The concluding words in that charge, "and then from all the evidence, you must believe beyond a reasonable doubt that the defendant is guilty," was appropriate and should have been included in the charge in the instant case, but both the charge given and the one refused are in our judgment defective and misleading wherein they tell the jury that they can not convict upon the testimony of the accomplice Estes unless they believe his testimony is true, and "that it shows the defendant is guilty as charged in the indictment." Before discussing this particular phase of the charge we advert to the criticism for using the word "alone." A charge upon accomplice testimony should never be so framed as to intimate to the jury that under any circumstances a conviction may be had solely upon the testimony of an accomplice, for as was said in Abbot's case, 94 Tex.Crim. Rep.; 250 S.W. 188:

"It is plain that the jury should never be told that they could convict on the testimony of an accomplice alone, for this is just what they can not do under our statute." (Art. 801, C.C.P.)

The use of the word "alone" in a charge upon this subject is not proper but rather the avoidance of its use is recommended.

The charge criticised tells the jury that they can not convict upon Estes' testimony alone, unless the jury first believe that his testimony is true and shows that the defendant is guilty as charged, etc. The applicability of this instruction can only be measured by the facts in this particular case. Estes had testified that he and appellant had entered into an agreement to rob C. Roddy; that they had attempted to do so one or two occasions but had failed to meet him; that on Thursday night, December 22, 1921 they went to his house where they waited until he and his son drove up their car; that he (Estes) held a gun on the son when he stepped out of the car, and that appellant presented his gun on C. Roody who commenced to holloa; That he saw appellant raise his arm as if to strike C. Roddy over the head; that the gun was discharged and that he (Estes) ran; that he did not know whether appellant secured the diamond stud or not; that he never saw appellant any more until Saturday night when appellant denied having obtained it. It will be seen from this statement that Estes did not make out a complete case against appellant because he did not know whether a robbery was in fact effected. His evidence went no further than to make out an attempt to commit the crime of robbery. Estes' testimony, if true, fails to show guilt because he does not claim to know whether any robbery was in fact committed. C. Roddy had known appellant for eight years or more, the latter being a customer of Roddy's; Roody testified that he was hit several times over the head with a pistol and that quite a struggle occurred between him and his assailant over the diamond stud. He did not attempt to identify appellant, as the robber had on a mask, but only went far enough to say that appellant corresponded in size with the man who assaulted him. Now under this state of facts let us look to the charge given on accomplice testimony. The jury may have believed Estes' testimony to be true, and they may also have believed that it showed appellant to be guilty of robbery, but regardless of whether they believed about the matter his evidence fell short of showing that appellant was guilty, because his evidence under the law, does not make out a case of robbery, and yet the jury are instructed that if there is other testimony corroborative of Estes' which tends to connect appellant with the offense committed, a conviction might follow. The corroborative testimony under this charge might tend to connect appellant with the commission of the offense just as Estes' testimony might sharply connect him with it and yet there be lacking evidence showing appellant's guilt beyond a reasonable doubt. The charge in the Oats case, reported in the 67 Tex.Crim. Rep.,149 S.W. 1194, eliminating the objectionable word "alone" therefrom, is more applicable in our opinion than the charge used in the present instance. In the Oats case the accomplice did not testify to a complete offense, but did testify to facts which it was necessary for the State to establish in order to make out the guilt of Oats. The charge in that case appears to have been framed relative to that particular phase of the evidence. It also concludes with the same words found in the charge copied from the Brown case (supra). It is impossible for this court to lay down any form of charge on accomplice testimony which will be appropriate in every instance, as the correctness of a charge must depend upon the facts of the particular case. So much confusion arose with reference to charges upon this subject that this court at one time attempted to formulate a charge, (See Campbell v. State, 56 Tex.Crim. Rep., 123 S.W. 583) but it was never accepted by the bar as announcing a correct principle of law and has been justly criticised by Mr. Branch on page 363, Section 709 of his Ann. Pen. Code for the reasons there stated by him. Convictions have been upheld where the charge in the Campbell case was used, but usually for reasons peculiar to that particular case. See Watson v. State, 90 Tex. Crim. 576,237 S.W. 298; Walker v. State, 94 Tex.Crim. Rep.. For a general discussion of such charges and what they should contain and what should be eliminated therefrom we refer to Stanfield v. State, 87 Tex.Crim. Rep., 208 S.W. 538.

We have reached the conclusion on more deliberate consideration that the charge complained of was not appropriate in the present case, and under the facts are not able to say it may not have been hurtful.

The order of affirmance is set aside, the judgment is reversed and the cause remanded.

Reversed and remanded.