Kirkendoll v. State , 134 Tex. Crim. 114 ( 1938 )

The offense is robbery; the punishment, confinement in the penitentiary for five years.

On the 23d of December, 1935, about 8:30 P. M., Lester Pearson, who was working at a filling station, was robbed by two men and approximately fifty dollars in money taken from him. He was unable to identify either of his assailants. He testified that the size of one of the men "compared with the size of Jerome Kirkendoll [the appellant] very well." However, he testified, further, that there were many young men in the town of the same size. Again, he testified that one of the robbers "humped forward a small degree." He said: "That is about the same way Jerome Kirkendoll stands and holds his shoulders."

Jimmie Crawford, an accomplice witness, testified that he and appellant perpetrated the robbery. Also it was his version that approximately two hours after they had committed the offense they boarded a bus for Amarillo. The testimony of nonaccomplice witnesses was to the effect that after arriving in Amarillo said parties roomed together at a hotel. The State introduced in evidence part of appellant's testimony given on a former trial to the effect that he had just returned from Amarillo when he met Crawford as he was proceeding toward the bus station. This statement of the appellant showed that he went to Amarillo with Crawford, where they spent the night together in a hotel. However, said statement tended to exculpate appellant. There was also testimony from nonaccomplice witnesses that appellant and Crawford had been seen together about two days before the robbery. No money was recovered from either appellant or Crawford.

We are unable to reach the conclusion that the testimony was sufficient to corroborate the accomplice witness.

The judgment is reversed and the cause remanded.

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.