Martin v. State , 36 Tex. Crim. 632 ( 1896 )

Appellant was convicted of murder in the first degree, and his punishment was assessed at death, and he prosecutes this appeal. There is but one bill of exceptions in the record. That is to the failure of the court to charge on accomplices' testimony. The principal State's witnesses in this case were John Rickard, Gus Colburn, and Emmett Colburn. Two of them, John Rickard and Gus Colburn, unquestionably participated in the killing of the deceased in such manner as to render them accomplices. As to Emmett Colburn, there is some testimony tending to show that he was an accomplice — certainly enough to submit to the jury the question as to whether or not he was such. Our statute (Art. 781, Code Crim. Proc., 1895) provides: "A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense." By a long line of decisions, it has been held that, where the State in a criminal prosecution introduces evidence of accomplices, it is incumbent on the court to give in charge to the jury the above article, and then, in all proper cases, to define who are accomplices, or what it takes to constitute persons accomplices in the commission of crime. This charge should be given, whether asked or not; but it is especially incumbent on the court, when the matter is pointed out by a bill of exceptions, to give the law on accomplices' testimony in charge to the jury. See, Winn v. State, 15 Tex.Crim. App., 171; Sitterlee v. State, 13 Tex.Crim. App., 587; Howell v. State, 16 Tex.Crim. App., 93; Coffelt v. State, 19 Tex.Crim. App., 436; Fuller v. State, Id., 380; Anderson v. State, 20 Tex.Crim. App., 312; Stone v. State, 22 Tex.Crim. App., 185; Boren v. State, 23 Tex.Crim. App., 28; Stewart v. State, 35 Tex.Crim. Rep.; Ballew v. State (Tex.Crim. App.) 34 S.W. Rep., 616. It is not necessary to discuss the testimony of said witnesses. The evidence not only tends to show that said three witnesses were accomplices, and that their testimony was materially prejudicial to the defendant, but the record establishes that the State's case is mainly based upon their evidence; and why the learned judge should have omitted, in a case of this importance, to give to the jury a charge on accomplices' testimony, especially when an exception was taken to his charge in this regard, is to us inexplicable. The defendant in this case may be ever so guilty, but the meanest criminal in the land has an inalienable right to have his case passed upon by the jury under the known rules of evidence, and to deny him this right is to deprive him of a fair and impartial trial according to the laws of the land. For the error of the courtin refusing to charge the jury on accomplices' testimony the judgment of the lower court is reversed, and the cause remanded.

Reversed and Remanded.

HURT, Presiding Judge, absent.

ON MOTION FOR REHEARING.