Littles v. State , 111 Tex. Crim. 500 ( 1929 )

MORROW, Presiding Judge.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.

From the evidence we learn the following: Charley Littles and his wife, Ethel Littles, negroes, conducted a restaurant. M. PI. Ellis, Jr., a youth fourteen years of áge, was an employee of Charley Littles. While in the restaurant, Charley Littles received a gunshot wound in the head which killed him. The only witness present besides the appellant was the Ellis boy. He was called and used by the .State as a witness. After describing the altercation between the appellant and the deceased, his version of the immediate facts attending the homicide was that in the course of the quarrel the appellant struck the deceased and went to a trunk. The witness at the time had a broom in his hand. Observing his wife opening the trunk, the deceased took the broom from the witness and rushed in the direction of his wife and was shot by her. She fired one shot which felled him to the floor. Upon the arrival of the officers the witness Ellis, in describing the tragedy to them, stated that the deceased had a pistol in his hand and was attacking the witness who, using a broom to protect himself, struck the pistol which accidentally fired and killed the deceased while it was in his hand. That he so described the tragedy was admitted by him upon the witness-stand and proved by the sheriff, who went to the scene of the tragedy soon after it occurred and before the body of the deceased was removed.

The witness Ellis testified that his declarations to the officers were false; that he uttered them at the direction of the appellant; that he made the utterance to the sheriff about thirty minutes after the homicide, and that the appellant told him to do so. By the State’s witnesses who arrived soon after the shot was fired it was shown that the appellant was screaming and claiming that Charley had shot himself. The testimony of the witness Ellis classifies him as an accessory. Admittedly, he made false statements to the sheriff relative to the appellant’s connection with the homicide in order to aid the appellant to evade arrest or trial or the execution of his sentence, as that language is contained in Art. 77, P. C., 1925. The evidence that would characterize him as an accessory to the homicide, (Blakely v. State, 24 Tex. Crim. App. 622; Gatlin v. State, 40 Tex. Crim. Rep. 118; Caylor v. State, 44 Tex. Crim. Rep. 124) would likewise classify him as an accomplice witness; and Art. 718, C. C. P., 1925, forbidding the conviction of one upon the uncorroborated testimony of an accomplice, would preclude the conviction of the appellant upon the testimony of Ellis in the absence of corroboration such as is required by the statute mentioned above. Willman v. State, 92 Tex. Crim. Rep. 77; Howard v. State, 92 Tex. Crim. Rep. 221. See also Vernon’s Ann. Tex. C. C. P., 1925, Vol. 2, p. 774, note 1; p. 777, note 3; p. 783, note 14; p. 785, note 15. In the present instance, the court refused to instruct the jury upon the subject of accomplice testimony with reference to the witness Ellis, and declined to amend his charge in response to an exception duly made and properly preserved. The appellant’s complaint of the action of the court mentioned is deemed sound and of a nature so material as to require a reversal of the judgment.

There are other questions presented, a discussion of which is deemed unnecessary as it is not likely that they will occur upon another trial.

We are precluded from giving consideration to the special charges requested for the reason that the record fails to disclose that they were presented to the trial court before the reading of the charge and before argument as the statute demands. See Art. 659, C. C. P., 1925; also Norman v. State, 91 Tex. Crim. Rep. 486; Harris v. State, 93 Tex. Crim. Rep. 349; Preston v. State, 94 Tex. Crim. Rep. 253; Berlew v. State, 88 Tex. Crim. Rep. 241; Linder v. State, 94 Tex. Crim. Rep. 316.

The judgment is reversed and the cause remanded.

Reversed and remanded.