Morse v. State , 106 Tex. Crim. 520 ( 1927 )

In his motion for rehearing appellant insists that we were in error in holding the evidence sufficient to corroborate the accomplice witness Nichols, and asks us to review the evidence upon this point. This we have done. In determining the question raised it is necessary to keep in mind the rule that corroborative testimony need not be sufficient to establish the guilt of the accused because if this was required the testimony of the accomplice would be valueless. (Nourse v. State, 2 Tex.Crim. App. 304, Branch's Ann. Tex. P. C., Sec. 717, and authorities there collated.) It was established by evidence other than that of the accomplice that the car in question was stolen in Beaumont on the night of the second day of June, and was sold by some one to Verhelle in Houston the latter part of August or first of September thereafter. If it be established that appellant sold the car (he being shown to be in possession of property recently stolen) it would support the conviction. Nichols' testimony is positive that he and appellant stole the car in Beaumont and that appellant sold it to Verhelle in Houston, but Nichols being an accomplice other evidence of some criminative fact must be found in the record which corroborates Nichols and which tends to connect appellant with the commission of the theft. If this corroborative testimony tends to show that appellant sold the car to Verhelle it would be sufficient. Upon the question of identity a witness may state his belief, or best impression, or best judgment, as to the identity of a person, and the fact that a witness cannot be positive in his identification goes to the weight of the testimony and is for the jury. (See Branch's Ann. Tex. P. C., Sec. 2483, for many authorities; also Tate v. State, 35 Tex. Crim. 234, 33 S.W. 121; Perry v. State, 155 S.W. 265.) The substance of Verhelle's testimony is that to his best judgment appellant was the man from whom he purchased the car. There is no testimony in the record that Nichols and appellant were at Verhelle's place of business any other time than on the occasion when Verhelle bought the car. Cardino, who was acquainted with appellant, testified as follows:

"I saw Mr. Morse, Jr., at Mr. Verhelle's place that day when they drove up. As they drove off I drove up and one of the men had on a white hat and I felt sure it was Mr. Morse, but I wouldn't be sure of it. I didn't take a good look at him. I wouldn't say positively it was Mr. Morse because I did not take a good look at him. He was driving off as I drove up. I wouldn't say it was really him. I could not tell you how long it was after I saw the man drive off until Mr. Verhelle got the car. I do not know just exactly when he got it. * * * At the time I am talking about seeing a man I could not see the man much, just saw a slight view of him. I wouldn't undertake to swear to the jury that I saw Mr. Morse there at all that day."

We think Cardino's testimony when analyzed amounts to him saying that on the occasion he saw the parties at Verhelle's he was under the impression that one of them was appellant, although he could not be positive about it. Now, the question is, does the testimony of Verhelle and Cardino, or either of them, tend to show that appellant was the man who sold the car to Verhelle? Assuming that the jury would not under the court's instructions have convicted in the absence of corroborative evidence, we must conclude that the jury accepted their testimony as corroborative of Nichols. Unless this court can say there was an entire absence of corroborative evidence, or that such as is claimed so to be is entirely without probative force, we would be unwarranted in invading the province of the jury in that regard. As throwing some light upon the question we refer to the cases of Grant v. State, 148 S.W. 760, and Adams v. State, 143 S.W. 185. It is our opinion that under the facts we would be unauthorized to hold that the corroborative evidence is insufficient.

The motion for rehearing is overruled.

Overruled.