Bogan v. State ( 1929 )

But two witnesses testified, namely, Kelly and White. Appellant insists that Kelly's conduct in endeavoring to suppress his knowledge before the grand jury and his connection with the transaction characterizes him as an accomplice witness or at least presented an issue of fact requiring the court to instruct the jury to determine whether Kelly was an accomplice witness or not, and to instruct them that if an accomplice, his uncorroborated testimony would not support the conviction. Kelly testified that he purchased five bottles of fluid from Jess Bogan; that after he, White and another companion had drunk the contents of four of the bottles, he and White got from Bogan another bottle of the same kind of liquid at the same place from which the other came.

Carl White testified that after getting and drinking the contents of three bottles of fluid, he and Kelly "bought another, and I paid fifteen cents on it and he paid a dime, and we drank it in the car shed. I was with him when he got the last bottle I mentioned at the car shed. He got it from Mr. Bogan, this defendant here. I went with Jess Bogan and Beaty Kelly out there when they got it. We went to the car shed — a little shed out there. Beaty Kelly handed — to Jess Bogan. I drank out of that last bottle out there we got from Jess Bogan. We drank it in the car shed.

On cross-examination the witness said:

"We got the last bottle from Mr. Bogan. I saw Mr. Bogan that time. He was in the car shed. We just got one bottle that time. The three bottles we drank at first came out of the vacant building. We went back and sat around for about five minutes I guess. We went back to the hamburger stand; then went back to the same building and got one bottle, and Kelly and I drank it together. Then we waited about ten minutes and I and Kelly and Jess Bogan went out to that shed and got the last bottle. I was present when Kelly gave Jess Bogan twenty-five cents for the last bottle and we drank it there at the shed where we bought it."

The evidence showed that the liquor was intoxicating. Appellant introduced no witnesses. The foregoing is from the State's witnesses upon their direct and cross-examinations.

The conclusion reached upon the original hearing is to the effect that if it be conceded that Kelly's conduct was such as presented a question of fact as to whether he was an accomplice witness, the failure to give a charge on the subject was not reversible error for the reason that the testimony of White showed without controversy that one bottle of intoxicating liquor was purchased directly from Bogan in the presence of White, he being one of the purchasers in connection with Kelly, and that circumstantially White's testimony connected Bogan with the possession and sale of the other bottles of liquor which White testified were drunk by him, Kelly and another companion. In other words, White being a disinterested and unimpeached witness, testified to facts which, if true, showed conclusively that the appellant was in possession of intoxicating liquor for the purpose of sale, and in the absence of any controverting evidence no basis appeared upon which the jury could reach any conclusion other than that which pointed to the guilt of the accused of the possession of intoxicating liquor for the purpose of sale, of which offense the jury found him guilty.

The statute precludes the conviction of one accused of crime upon the uncorroborated testimony of an accomplice, and in a proper case an instruction to the jury to that effect is necessary. See Vernon's Ann. Tex. C. C. P., 1925, Art. 718, Vol. 2, p. 773; note 20, p. 795, and note 29 under Art. 658, p. 167 of the same volume. Under Art. 666, C. C. P., which forbids the reversal of a case for a harmless error in the charge, it has been held that it was not necessary in every instance in which an accomplice witness testified to instruct the jury upon the subject. In other words, the failure to do so is not in all cases reversible error. See Fisher v. State, 81 Tex. Crim. 568; Wilkerson v. State, 93 Tex.Crim. R.; also Trent v. State, 31 Tex.Crim. R.. The evidence in the present instance is regarded as bringing the case within the exception to the rule requiring a charge on accomplice testimony.

The motion for rehearing is overruled.

Overruled.