Townsend v. State , 90 Tex. Crim. 552 ( 1921 )

Appellant was convicted in the District Court of Smith County of selling intoxicating liquor in violation of the Dean Law, and his punishment fixed at confinement in the penitentiary for two years.

We do not deem it necessary to discuss any question save that of the sufficiency of the evidence. The conviction rested largely upon the testimony of certain witnesses who purchased the alleged liquor, and, therefore, were accomplices. These parties said they saw appellant on the street and made arrangements with him to get them some whisky, and that later he came to an appointed place in a Studebaker car, and that one of them went to said car and got from appellant a fruit jar containing the liquor. It is statutory that no matter how much credence the jury may give to the testimony of one who is an accomplice, or to any number who are accomplices, the accused cannot be convicted on such testimony unless there be corroborative evidence which in and of itself tends to connect the accused with the commission of the crime, and the corroboration is not sufficient if it merely shows that a crime has been committed. Art. 801, Vernon's C.C.P. In testing the sufficiency of evidence offered as such corroboration, resort has often been had to a consideration of such evidence alone in order to see if there be in it any fact which tends to point to the accused as the criminal. Roach v. State, 8 Texas Crim. App., 478; Welden v. State, 10 Texas Crim. App., 400; Blakely v. State, 24 Texas Crim. App., 625; Chandler v. State, 89 Tex. Crim. 309, 230 S.W. Rep., 1000.

Applying this rule, we find that the evidence aside from that of the accomplices shows that on the night of March 11, 1921, some one drove a Studebaker car No. 500237 up to a point in the city of Tyler near a Ford car, and that George Davis, one of the accomplice witnesses went from the Ford car to the Studebaker and that some one in the Studebaker car gave him a package; that the Studebaker car No. 500237 belonged to appellant's brother, and that appellant drove that car more frequently than any one else. No one identified the driver of the Studebaker car or suggested that it was appellant. No description was given of the man driving it. It is shown that others drove said car. We confess our inability to see in this any fact which would fairly tend to point out appellant as having committed the crime of selling intoxicating liquor. Chandler v. State, 89 Tex.Crim. Rep., 230 S.W. Rep., 1000-1001.

Because of the insufficiency of the testimony to corroborate that of the accomplices the judgment will be reversed and the cause remanded.

Reversed and remanded.

ON REHEARING January 11, 1922.