Jones v. State , 59 Tex. Crim. 559 ( 1910 )

We have been convinced by the argument filed in behalf of appellant in his motion for rehearing that we were in error in affirming this case. There was, as stated in the opinion, some evidence that the witness Brandon was an accomplice, and sufficient evidence to make this an issue before the jury. True, it would remain for them to determine whether he was an accomplice or not. If they should have concluded that he was not an accomplice, then undoubtedly the evidence was sufficient to sustain the conviction. If on the other hand they should have believed, under a fair submission of the issue, that he was an accomplice, then there was not, we think, on a more careful examination of the record, sufficient evidence of corroboration to sustain a verdict of guilt. It was in this state of the record that appellant requested a charge to the effect, in substance, that if they found and believed from the evidence that Brandon was an accomplice, then they would return a verdict of not guilty for the reason that there was not in the record sufficient evidence of corroboration to justify a conviction. In this case Brandon testifies, among other things, that the animal alleged to have been stolen was caught in what is known as Gay's hay field, and that he went there with Jerry Pierson and defendant, and that as they went through the lane between Gay's and Smith's place they met one George Terry at a gate, and that at this time witness was riding a bay horse, Pierson was riding a sorrel horse, and defendant was riding a grey horse, and that as they were going for the beef they also met a man named Brantly and two women opposite to where one Toliver lived. Brantly was introduced, who testified that he knew appellant, and that on the night in question he met three persons near Gay's lane between 9 and 10 o'clock at night, but that he did not recognize either of them. Neither of the two women who, according to Brantly's testimony, were with him, were put on the stand. George Terry testified he saw three people near the place named by Brandon; that he recognized Brandon and Jerry Pierson, and that he saw someone else, but did not recognize who it was; that this person was about fifty yards off and had a yearling or cow in front of him. That this testimony shows that someone was with Brandon and Pierson, near where the cow was taken, is not to be denied, but who was this person? Terry testifies that the man whom he did not recognize was riding either a white, grey or light colored horse. It was shown that about this time appellant had or used such a horse, but it was also shown that Mr. Berkley, a very reputable white man in the neighborhood, during this time, had a grey horse, and that he rode it frequently. The rule seems to be, as stated by Judge Hurt, "The accomplice may state any number of facts, and these may all be corroborated by the evidence of other witnesses; still, if the facts thus corroborated do not tend to connect the defendant with the crime, or if they do not point pertinently to the defendant as the guilty party or as a participant, this would not be such corroboration as is required by the Code." Welden v. State, 10 Texas Crim. App., 400. So that if we should eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witnesses with a view of ascertaining if there be inculpatory evidence, that is, evidence tending to connect appellant with the offense, there would seem to be an utter lack of such testimony. We are reluctant to reverse a case where the verdict has received the approval of the trial court, but we doubt if, under the law, we would be justified in sustaining this verdict, and think it would be establishing an unsafe precedent so to do. Simms v. State, 8 Texas Crim. App., 230; Gillian v. State, 3 Texas Crim. App., 132; Roberts v. State,44 Tex. 119; Hoyle v. State, 4 Texas Crim. App., 239; Chambers v. State, 44 S.W. Rep., 495; Johnson v. State, 32 S.W. Rep., 1041; Moore v. State, 47 Tex.Crim. Rep., 83 S.W. Rep., 1117; Martin v. State, 21 Texas Crim. App., 1, 17 S.W. Rep., 430.

For the reason above mentioned the motion for rehearing is granted, the judgment of conviction is set aside, and the cause now reversed and remanded.

Reversed and remanded.