Bennett v. State , 56 Tex. Crim. 602 ( 1909 )

ON REHEARING.

June 23, 1909.

RAMSEY, Judge.

This case was affirmed on a former day of this term. The only matter about which we had any difficulty was the sufficiency of the evidence to sustain the verdict. We then had some doubt as to the sufficiency of the evidence even on the record as it then appeared.! The statement of facts, as copied in the transcript, however, in fact contained a glaring mis-statement that reversed the whole sense of the testimony of McLemore, who was the principal witness. As it appears in the transcript he is made to say this: “I do not think he (appellant) saw me and I told him what I had done.” This, in connection -with the deposit of the money in the cash drawer as the result qf the same, was held sufficient to visit appellant with a guilty knowledge of, and participancy in, the sale. A showing is now made that this sentence should read: “I do not think he saw me and I did I, not tell him what I had done.” With the statement of facts corrected it is, we think, clear that the testimony is not sufficient, considering that McLemore was an accomplice, to sustain the verdict. We are always reluctant to set aside verdicts of juries which have received the approval of the trial court, but in this case we are convinced on full reflection that there was not sufficient evidence in the record to form a basis of conviction.

So believing the motion is granted and the cause reversed and remanded for another trial.

Reversed and remanded.