Anderson v. State , 95 Tex. Crim. 346 ( 1923 )

Upon the original hearing the court was obliged to ignore thirteen bills of exception because as the record then appeared, they were filed after the time allowed by law had expired. It now appears that there had been an extension of time which the clerk had neglected to embrace in the record. Because of this, a review of the record becomes necessary.

After a careful examination of certain bills of exception which were not previously considered for the reason stated, we perceive in only one of them a question of moment.

There is nothing observed in the record which rendered the court's charge subject to just criticism because of its failure to instruct the jury upon the law of ordinary theft or aggravated assault.

The bills relating to the admission of testimony, argument and other matters of practice relate to things that are not likely to occur upon another trial.

Upon the subject of accomplice testimony, the court gave this charge:

"I instruct you that the witness L.J. Mouhart, in this case, is an accomplice, and that you cannot convict the defendant upon his testimony, unless you first believe that his testimony is true, and that it connects the defendant with the offense charged in the indictment, and unless you further believe from the evidence that there is other testimony in the case corroborative of the testimony of said L.J. Mouhart, tending to connect the defendant with the commission of the offense charged."

Objection to it was properly urged, and a special charge in lieu of it presented and refused. The action of the court in failing to amend his charge or to read the special charge to the jury is made the subject of exception.

The paragraph of the charge quoted is like that suggested in the seduction case of Campbell v. State, 57 Tex.Crim. Rep.. Since this case was written, this court has on several occasions indicated that the form of charge therein suggested did not accurately present the law, but owing to the state of the testimony in some cases the use of the form was not calculated to injure the accused and was therefore not reversible error, (Abbott v. State, 94 Tex.Crim. Rep., 250 S.W. Rep. 188; Watson v. State, 90 Tex.Crim. Rep.), while in other cases presenting a different state of facts, it might be misleading and harmful. See Standfield v. State, 84 Tex.Crim. Rep.; Walker v. State, 94 Tex.Crim. Rep., 252 S.W. Rep. 547. Where the testimony of the accomplice is so specific in giving the details of the offense as to show without question that the offense was committed through the agency of the accused, or when the other testimony is conclusive of guilt of the accused, the use of the form mentioned has been held harmless though inaccurate. See Watson v. State, supra; Abbott v. State, supra; Walker v. State, supra. In instances where the testimony of the accomplice, while criminating in its nature, does not embrace all of the elements of the offense as well as connect the accused with its commission, the form used is misleading in that it in terms tells the jury that they may convict upon the testimony of the accomplice if they believe it is true and believe there is othercorroborative testimony tending to connect the accused with thecommission of the offense. It is obvious that in many cases where the testimony of an accomplice is used, his testimony may be trueand sufficiently corroborated, but still not prove his guilt. Illustrations emphasizing this thought will be found in the Abbott case, supra.

The special charge requested in the instant case, if given, would have informed the jury that in order to justify a conviction of appellant upon the testimony of the accomplice, it was essential that the jury believe that his testimony was true and that it showed beyond a reasonable doubt that the accused wasguilty of the offense charged. The use of the language italicized was in the instant case, material. Such language was used in Brown's case, 57 Tex.Crim. Rep., and in Oates' case,67 Tex. Crim. 496, both of which have frequently been held sufficient. See Watson v. State, 90 Tex.Crim. Rep.. It was omitted, however, in Standfield's case, supra, in which the charge was held bad.

In the present case, while reliance is not had upon circumstantial evidence alone, the accomplice did not testify that he saw the offense committed, and the injured party was unable to say that appellant removed the diamond from his shirt bosom. The accomplice testified to circumstances putting the appellant into the position to commit the assault and the robbery. The injured party, before the time of the offense, was admittedly more or less mystified either by drugs or drinks. There are many important circumstances testified to by others than the injured party and the accomplice which were relied upon by the State as fixing the guilt upon the appellant. Randall, the injured party, in his testimony, declared that appellant assaulted him and detailed circumstances from which the jury was authorized to conclude that Randall was also robbed by the appellant. The testimony of the accomplice, however, is not conclusive to that degree that the jury finding it to be true, would necessarily convict; nor is the testimony, excluding that of the accomplice, of a character so conclusive as to dispense with the necessity of complying with appellant's request to embrace in the charge on accomplice testimony a declaration by the court informing the jury that the conviction must rest not alone upon the fact that they believed that the accomplice told the truth, but upon the fact that, upon the whole case, theybelieved beyond a reasonable doubt that appellant committed theoffense.

The motion is granted, the affirmance set aside, the judgment reversed and the cause remanded.

Reversed and remanded.