Heath v. State

Clark, J.

The instructions asked by the defendant, to the effect that a conviction cannot be had on the uncorroborated testimony of two accomplices, while not drawn with legal accuracy, should have been given by the court with. proper corrections and additions. The prosecution was supported chiefly by two witnesses, who had been indicted jointly with the defendant, and who, from their own testimony, participated in the commission of the act for which the defendant was on trial.

The general charge of the court, upon this point, instructed the jury that a conviction could not be had upon the testimony of an accomplice, unless corroborated by other testimony tending to connect the defendant with the offence committed, and that the corroboration was not sufficient if it merely showed the commission of the offence; but as more than one accomplice had testified on the trial, it was important that the jury should have been informed that, in the matter of corroboration, the testimony of one could not be invoked to aid the other, - especially as the charge was excepted to and a counter-instruction asked to that effect. In the absence of such caution, the jury were not unlikely to found their verdict upon an illegal basis. Roberts v. The State, 44 Texas, 119; Carroll v. The State, 3 Texas Ct. App. 117.

As the evidence introduced by the State might tend to establish the theory that the defendant had in good faith bought the animal alleged to have been stolen, it was also incumbent upon the court, no matter what view he may have entertained as to the weight or value of the testimony, to have submitted that issue to the jury, a part of the law applicable to the case. The charg hould embody instructions applicable to every legitims deduction that the jury may draw from the evidence. Johnson v. The State, 27 Texas, 758 ; Maria v. The State 29 Texas, 698 ; Bishop v. The State, 43 Texas, 390; Roberts v. The State 1 Texas Ct. App. 187. And in connection therewith the identity, or want of identity, of the matter of the bill of sale in evidence, with the witness J. Walker should have been submitted to the jury, as a question of fact under proper instruction.

The failure to give these special in... the appellant, and his exception to the general charge because it failed to state all the law applicable to the case, which exception was noted at the time, and duly saved by the bill of exceptions and assigned for error, requires a reversal of the judgment, in accordance with a plain statutory provision. Code Cr. Proc., art. 685; Bishop v. The State, 43 Texas, 390. These charges seem to have been refused because substantially given in the main charge; but upon a critical examination of the latter, we fail to find them embodied therein, either expressly or in substance. fictions asked by

While the law vests an enlarged discretion in trial judges as to the examination of witnesses and the enforcement of the rule, when the same has been requested by either party, yet this discretion is not arbitrary ; nor is the statute giving the right merely directory, and to be disregarded at pleasure. As said by this court in the case of McMillan v. The State, decided at a former day of this term, ante, p. 144: "The right to enforce the rule is a right given by law, and it should neither be denied nor substantially abridged at the arbitrary discretion of the presiding judge.” Being a right guaranteed by law, a defendant should not, after a request for its enforcement, be deprived of its benefit, unless it should clearly appear that no possible injury could result to him from its relaxation. These remarks are induced, not as condemnatory of the action of the court in this particular case, but for the purpose of calling attention to a provision inserted in our statutes for a wise purpose, and not as a mere suggestion to courts. After the enforcement of the rule has been requested, the proper practice is to require the assent of counsel to the discharge of a witness from the rule before the conclusion of the testimony, and, in case of refusal, to enforce the rule, notwithstanding the particular witness may have been examined.

The judgment is reversed and the cause remanded.

Reversed and remanded.