Tate v. State , 55 Tex. Crim. 397 ( 1908 )

The indictment in this case charges theft over the value of $50.

From the evidence it is shown that the property was taken by means of burglary of a railroad car. Two questions are presented by the motion for a new trial: the insufficiency of the evidence and the error of the court in charging upon the law of accomplice. The law in regard to an accomplice, when used as a witness, became necessary to be charged inasmuch as the State used witnesses who connected themselves criminally with the transaction. The charge is as follows: "A conviction can not be had upon the testimony of an accomplice, unless the jury first believes the accomplice's evidence is true, and that it shows or tends to show, defendant is guilty, and then you can not 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." Then follows the definition of who are accomplices when used as witnesses. Then the court applies the law as follows: "Now, if you are satisfied from the evidence that the witness Herbert Jackson was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are instructed that you can not find the defendant guilty upon his testimony unless you first believe that the testimony of said Herbert Jackson is true, and that it shows that the defendant is guilty as charged in the indictment, and still you can not convict the defendant unless you further believe that there is other evidence in the case outside of the testimony of Herbert Jackson tending to connect the defendant with the commission of the offense charged in the indictment.

"Now, if you are satisfied that the witness Charley Swartz was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are instructed that you can not find the defendant guilty upon his testimony unless you first believe that the testimony of Charley Swartz is true, and that it shows that the defendant is guilty as charged in the indictment; and still you can not convict the defendant unless you further believe that there is other evidence in the case, outside of the testimony of Charley Swartz tending to connect the defendant with the commission of the offense charged in the indictment." The basis of the criticism seems to be that in the first quotation above wherein this language is used, "that it shows or tends to show defendant is guilty." The expression "or tends to show" should not be given in a charge on accomplice's testimony when it applies to the accomplice directly. The accomplice may testify to a case, but his testimony is not sufficient even if true, unless there is evidence outside of and beyond which tends to connect the defendant with the transaction about which the accomplice is testifying. It is not sufficient that the accomplice whose testimony is relied upon, simply tends to show. If so, then we would have tendencies of testimony from two witnesses, one of which is the accomplice, only tending to show an offense. This is not the law. There must be sufficient evidence to show that an offense has been committed. It is not sufficient that the testimony only tends to show. An offense must be proved beyond a reasonable doubt and the defendant the guilty party beyond reasonable doubt. But when the whole charge is taken into consideration in regard to this particular question, and especially in the application of the law to the case, we think this is not of sufficient importance to require a reversal of the judgment. In applying the law to this particular phase of the testimony, the court instructed the jury pertinently and pointedly that the evidence of Albert Jackson and Swartz must show that defendant is guilty as charged in the indictment and that their testimony must be found by the jury to be true. He further guarded this particular question by instructing the jury that before they could convict they must further believe that there is other evidence in the case outside of the testimony of these two witnesses tending to connect the appellant with the offense. As this particular record is presented to us, we are of opinion that the charge was sufficient, and at least is not sufficiently erroneous to require a reversal of the judgment.

The judgment is, therefore, affirmed.

Affirmed.

REHEARING FEBRUARY 24, 1909.