Shrader v. State , 121 Tex. Crim. 623 ( 1931 )

I am unable to agree to the proposition that there is sufficient evidence in the present record to corroborate the testimony of the accomplice witness Bunting. My brethren have reached a different conclusion. I am in full accord with the principles of law stated, both in the original opinion and the opinion on rehearing, but am persuaded that the purported corroborating evidence does not meet the requirements of the law. I am loathe to dissent in any case, and especially in one where difference of opinion arises purely from an appraisement of the evidence. Excluding the testimony of the accomplice witness, the other evidence presents the following incidents only.

Murphy knew that Jodie Johnson owned a brown cow which ranged near Murphy's place, and that this cow brought a calf either in January or February, and that the last time he saw the calf with the cow was between the 10th and 15th of August. He described the calf as "between a brown and bluish type — brown about the middle of its side and it was kind of bluish color from there on down." Murphy's testimony only goes to the extent of showing that this calf disappeared, and leaves a strong inference that it was stolen by somebody, but in no way tends to connect appellant with the theft.

Johnson only testified to want of consent to anybody taking the yearling. He did not know in fact whether it had been taken or killed by anybody. He had never seen the yearling and all he knew about his brown cow having a calf was hearsay.

The witness Dirden ran a barbecue stand in the town of Shepherd, and in the latter part of August or first part of September he bought a young dressed beef from appellant who was accompanied at the time by Bunting. Dirden did not undertake to describe the animal, as, of course, he could not do; it being dressed when he bought it. All he knows is that he bought it on Friday and that it was a young beef.

The foregoing is a condensed statement of all testimony outside that of the accomplice witness. It occurs to me that it in no way tends to corroborate Bunting's testimony in any particular, save that he was present at the time appellant sold a young beef to Dirden.

In determining the sufficiency of the corroboration we know of no clearer or safer test than that laid down in Welden v. State, 10 Texas App., 400, as follows: "* * * Eliminating from the case the evidence of the accomplice, and then examining the evidence of the other * * * witnesses with the view to ascertain if there be inculpatory evidence — evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated; if there is no inculpatory evidence, there is no corroboration, though the accomplice may be corroborated in regard to any number of facts sworn to by him." This test has been approved numberless times. See Boone v. State, 90 Tex.Crim. Rep., 235 S.W. 580; Durham v. State, 106 Tex.Crim. Rep., 290 S.W. 1092; Turner v. State, 108 Tex.Crim. Rep., 1 S.W.2d 642. Applying the foregoing test to the purported corroborating evidence in the present case, it occurs to my mind that it falls short of furnishing that corrobaration required by the statute. It does not remotely tend to connect appellant with the theft of Johnson's animal or tend to identify the carcass of the animal sold to Dirden as ever having belonged to Johnson. As I view the case, the conviction rests solely upon the testimony of the accomplice witness. In my opinion the motion for rehearing should be granted, the judgment of affirmance set aside and the judgment should be reversed and the cause remanded.

I respectfully record my dissent.