Rice v. State , 50 Tex. Crim. 648 ( 1907 )

Appellant was convicted of arson, and his punishment assessed at six years confinement in the penitentiary.

Appellant reserved a bill of exceptions to the action of the court in allowing the witness Agnew to testify because he had been convicted a few days previously of a felony. The court appends to the bill presenting this matter, the following explanation: "The witness, Tom Agnew, was fully interrogated as to his intentions as to the case in which he was convicted. He said that he had not talked to his attorneys, did not know what they intended doing in the case, and did not know what he would do as to appealing his case. At the time the witness testified more than three full days had passed since he was found guilty of arson in this court, and no motion for a new trial had been filed, and no sentence had been passed by the court on the said witness Tom Agnew." Under the holdings of this court the witness is not disqualified until the sentence of the court has been pronounced upon him. See Kingsbury v. State, 37 Tex.Crim. Rep.; Arcia v. State, 26 Texas Crim. App., 193, and Woods v. State, 26 Texas Crim. App., 490. The mere fact that three days had expired since the judgment of conviction, would not preclude a motion for rehearing being filed with permission of the court, and we hold that the witness having never been sentenced was still qualified to testify.

Bill of exceptions number 1 shows that the State was permitted to put J.J. Day upon the stand and over objection of appellant he testified to a conversation he had with the witness Tom Agnew, in which conversation said Agnew, in substance, stated that he and the appellant burned the house in question. Appellant objected to same on the ground that same was incompetent, illegal, irrelevant, and prejudicial and was used by the jury as a fact in arriving at a verdict against the defendant. The defendant has introduced several witnesses, to wit: Holloway, Fox and Edwards, who testified that about July 28, 1906, and later, the witness Tom Agnew had told them of the burning and exonerated appellant from blame or connection therewith, and this testimony was admitted to show that soon after the occurrence of the crime the witness Agnew gave in substance the same statement of the crime that he on trial gave in evidence.

Bill of exceptions number 2 presents practically the same objection to the testimony of Dave Stanford who testified that prosecuting witness Agnew told him that Bud Rice assisted in the burning. The witness Edwards and Fox had testified that Agnew told them in substance that appellant had nothing to do with the burning, and knew nothing about it, and the court in his explanation states that this testimony of Stanford was introduced to show that the prior statements of Tom Agnew, made soon after the alleged burning, were in accord with his testimony given on this trial at this time. Where a witness testifies in a case, and the opposite side proves statements made by said witness out of court contradictory to his testimony on the trial, it is legitimate and proper for the court to permit the opposite side to prove that said witness made statements in line and in consonance with the testimony given by said witness, provided said statements are contemporaneous.

Appellant insists that the verdict of the jury is not supported by the evidence and contrary thereto. We take it that the evidence clearly corroborates the testimony of the accomplice; that the witness Agnew is an accomplice is conceded, but the evidence strongly corroborates his testimony, and further suggests the participancy of appellant in the commission of the crime. Appellant's counsel, in his argument before this court, insisted that the testimony corroborating the testimony that was introduced by the State to show the prosecuting witness Agnew had made similar statements out of the court to that testified in court, was not admissible upon the further ground that it was immaterial. An accomplice stands, as far as credibility is concerned, like any other witness save and except his testimony must be corroborated, and where the defense, as it did in this instance, proves contradictory statements, as having been made by an accomplice, to the statements he makes in testifying, it is legitimate for the State to prove contemporaneous statements made by the accomplice to other witnesses in line with his testimony. This testimony, as the court properly stated, is admissible touching the credibility of the accomplice's testimony. It is true a conviction cannot be had upon the testimony of an accomplice unless his testimony is corroborated, but this does not render the further proposition correct that the accomplice must first be believed by the jury before you can corroborate him. It is a paradox to say that you can corroborate a false statement. Corroborate means to prove, to demonstrate the accuracy and verity of a given thing. Now, if the accomplice's testimony is not believed at all, then, in the nature of things, you can not corroborate him. The testimony, therefore, was admissible as above stated. Finding no error in the record, the judgment is affirmed.

Affirmed.