Meyer v. State , 104 Tex. Crim. 6 ( 1926 )

Appellant appeals from a conviction for manufacturing intoxicating liquor, the punishment being one year in the penitentiary.

We find fifteen bills of exception in the record. It is necessary to discuss only the one complaining of the court's refusal to instruct a verdict of acquittal.

M. M. Vest and his wife were accomplice witnesses as a matter of law. The learned trial judge recognized this and so instructed the jury, together with proper charge relative to required corroboration. It is unnecessary to set out the testimony of Mr. and Mrs. Vest. No matter how complete a case may be made out by them a conviction is not permitted unless they are corroborated. (Art. 718, C. C. P. 1925.)

The sheriff testified about finding a still which had been used. This equipment was on a creek upon premises in the possession of one Guthrie, who had it rented. Guthrie had no knowledge of the presence of the still until notified by the officer. Neither the sheriff nor Guthrie pretend to know to whom the outfit belonged and in no way connect appellant with it. The only other witness called by the state was Hughitt, who says he had discovered the still and on one occasion saw appellant going in the direction of it, having at the time a sack on his back. The point where appellant was seen by this witness was a half mile from the still. Witness was three hundred yards from appellant. He did not know what was in the sack, nor where appellant was going, nor where he did go. He was coming from the direction of Vest's house. There is not another word of evidence even claimed to be corroborative of the accomplices. Any other man with a sack on his back seen half a mile from the still going in the direction of it would have been just as strongly implicated as appellant so far as the non-accomplice evidence is concerned. This evidence furnishes no corroboration as to a material criminative fact tending to connect appellant with the manufacture of whiskey. It can scarcely be said to even raise a suspicion against him. Atchley v. State, Tex. Cr. R.,254 S.W. 992; Noble v. State, 273 S.W. 251; McGarry v. State,268 S.W. 475; Chandler v. State, 89 Tex.Crim. R., 230 S.W. 1000; Hunt v. State, 89 Tex.Crim. R., 229 S.W. 869; Thomas v. State, 89 Tex.Crim. R., 230 S.W. 159; Wethered v. State,272 S.W. 472; Burgess v. State, 274 S.W. 152.

Our state's attorney concedes that the accomplice witnesses are not corroborated as the law demands. We are in complete accord with him in this view. The court should have directed a verdict for appellant, and if upon another trial the evidence is the same, a verdict of not guilty should be instructed.

The judgment is reversed and the cause remanded.

Reversed and remanded.