Shaffer v. State , 121 Tex. Crim. 137 ( 1932 )

Appellant insists that we were in error in holding that the accomplice witness Burton was sufficiently corroborated. Burton testified that he, Hugh Caperton and appellant were desirous of obtaining some money for the Christmas holidays; that the three of them decided to write some checks purporting to be executed by Dr. J. E. Fuller; that pursuant to their agreement appellant wrote three checks and signed J. E. Fuller's name to them; that appellant stated to him (the witness) that he cashed his check at Montgomery-Ward's, where he bought a wrist watch; that he (the witness) attempted to cash one of the checks and was apprehended. Aside from the testimony of the accomplice witness Burton, the proof introduced by the state was, in substance, as follows: Appellant took a check for $18.70 purporting to be signed by J. E. Fuller to Montgomery-Ward and Company, where he purchased a writ watch for $9.98. He delivered the check in the sum stated to Montgomery-Ward and Company, and received the difference between the price of the wrist watch and the amount of the check in money. The check was made payable to E. H. Adams. Appellant, before delivering the check to Montgomery-Ward and Company, indorsed thereon the name E. H. Adams. Appellant was positively identified as being the man who delivered the check to Montgomery-Ward and Company on the occasion in question. Dr. J. E. Fuller did not execute the check, and authorized no one to sign it. He had no account in the bank upon which the check was drawn.

The opinion is expressed that the accomplice witness was sufficiently corroborated. The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be other evidence tending to connect the accused with the offense committed. Article 718, C. C. P.; Minor v. State, 108 Tex.Crim. Rep.,299 S.W. 422. Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, would be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supplies the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense the law is satisfied. Minor v. State, supra. That a forgery had been committed was clearly established by the testimony of non-accomplice witnesses. That appellant presented the forged check to Montgomery-Ward and Company and indorsed thereon a name that did not belong to him was also established by the testimony of non-accomplice witnesses.

We are constrained to hold that the record before us discloses that no diligence was used by appellant to secure the testimony of the witness Craven. The burden was upon appellant to establish the exercise of diligence in support of his application for continuance. Branch Annotated Penal Code, sec. 314; Grimes v. State, 77 Tex.Crim. Rep., 178 S.W. 523.

The motion for rehearing is overruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.