Blakely v. State

White, Presiding Judge.

This is a companion case to Erasmus May v. The State, 23 Texas Court of Appeals, 146.

In the first count the indictment charges May with the murder of Berush Baffin, and in the second count the charge as set forth against this appellant is that “ after the commission of the aforesaid offense of murder by the said Erasmus May, as aforesaid, and well knowing the said Erasmus May to have committed said offense, Steve Blakely (the defendant) did then and there unlawfully, willfully and feloniously, conceal and give aid to the said Erasmus May, in order that he, the said Erasmus May, might evade an arrest and trial for said offense; and so the grand jurors aforesaid, upon their oaths aforesaid, do say that he, the said Steve Blakely, did then and there become and make himself an accessary to the murder and killing of the said Berush Baffin by the said Erasmus May, in the manner and form as aforesaid, contrary,” etc. The indictment sufficiently charged the offense (Willson’s Crim. Forms, No. 539, p. 232) under article 86 of the Penal Code, which defines the crime in the following language, viz: “An accessary is.one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial, or the execution of his sentence. But no person who aids an offender in making or preparing his defense at law, or procures him to be bailed, though he afterwards escape, shall be considered an accessary.”

At appellant’s trial in the court below, the matters proved in behalf of the prosecution to establish the crime alleged were objected to by defendant both as irrelevant and insufficient to the issue. It is insisted that the facts permitted to be proven did not go to show either that defendant concealed May, or that he gave him aid such as to enable him to evade an arrest or trial.

In brief the facts proven were that, immediately after the homicide, this defendant and May went off to themselves and had a private conversation, after which May mounted a horse and rode off. Defendant Blakely then told the only other two parties who were present that they must swear before the coroner’s jury to a certain state of facts which he then and there detailed, and that if they did so it would appear to said jury, and they would so find, that May was justifiable in self defense in killing Daffin, and he would either be exonerated entirely or put upon a very light bond to answer the charge. Acting upon these suggestions, and through fear of May and defendant, the two witnesses did, at the coroner’s inquest, swear, as did also Blakely, to the fabricated statement .of the occurrence as devised by Blakely, and the result, as anticipated by Blakely, was that May was subsequently placed under a nominal bond, and that the grand jury for several terms of the district court thereafter failed to indict him for the murder, and he was only indicted after it leaked out and was ascertained that the testimony given by the witnesses at the inquest was false and perjured. On May’s trial under indictment for the murder the two witnesses who had sworn on the inquest' to the fabricated statement of Blakely, testified that they had sworn falsely, and developed the reasons and inducements causing them to do so. They also stated, as they declared truthfully, the facts attendant upon the homicide as they actually did occur, and upon this their testimony, corroborated as it was by other evidence, May was convicted of murder of the first degree, and his punishment was affixed by the verdict and judgment of' the court at a term of seventy-five years in the penitentiary; which judgment on appeal was after-wards affirmed by this court. (23 Texas Ct. App., 146.)

It is perhaps necessary that we should further state that, after thé conversation between May and defendant immediately following upon the killing, and after he had mounted a horse and ridden off as above stated, May did not appear at the coroner’s inquest, nor was he seen for a day or so thereafter, until his appearance before the justice of the peace to enter into the nominal bond for his appearance above mentioned.

On this appellant Blakely’s trial as accessary, the two witnesses also testified as in May’s case to the facts with regard to the fabricated testimony at the inquest, and to the facts as they really occurred.

The objections presented to this testimony are thus stated in the able brief of counsel for appellant, viz:

“We submit that under our statute the “aid” given to an offender which the law denounces, is something which relates to the personal conduct of the offender after the offense, or an aid which obstructs the operation of the law in its executive branch, such as concealing the person of the offender, or advising him how to escape pursuit; furnishing him means to make his flight; putting persons in pursuit off the track, and not an aid which causes justice to slumber, or perverts its course, such as comppunding. with a felon, concealing the transaction either by silence or by perverting the facts so as to make that appear innocent which in truth is not.”

Mr. Bishop says “the true test whether one is an accessary after the fact is whether what he did was by way of personal help to his principal to elude punishment, the kind of help being unimportant.” (1 Bish. Crim. Law, 7 ed., sec. 695.) Mr. Wharton says: “Any assistance given to one known to be a felon, in order to hinder his apprehension, trial and punishment, is suflicient, it is held, to make a man an accessary after the fact.” (1 Whart. Crim. Law, 8 ed., sec. 241.)

We are of opinion the facts we have stated, and upon which this case rests, bring it within the purview of the general law and our statute, supra, as to accessaries. Appellant, if he did not in fact conceal May until the perjured testimony was given which justified him before the inquest, certainly aided him to the extent that he was not arrested and punished for his crime until the perjury was discovered, and but for the discovery the -aid which defendant attempted to give him would have proven effectual in affording him perfect and complete immunity from apprehension, trial and punishment for the murder he had committed.

It is true that, under the facts disclosed, defendant might have been prosecuted and convicted under our statute for subornation of perjury (Penal Code, art. 190), but this fact did not destroy nor affect his relation to the murder.as an accessary; it was simply a. question with the prosecution as to which of the offenses he should be tried for. We have discussed this branch of the case thus lengthily because of the fact that our statute as to accessaries has never before been directly construed. The disposition of the case,-ho we ver, -on this appeal must turn upon another question.

The main issue in this case, in so far as this defendant was concerned, is, did defendant fabricate, the testimony, and.did he induce the two witnesses, Helson and Henderson, to swear to the same before the coroner’s inquest? This question is the all-important one, and it is the primary one requisite in the establishment of his guilt as accessary to the murder. Without that essential fact being ascertained positively and conclusively, his guilt is not established.

How, it is in "proof that defendant and these two witnesses were alone present when the matters transpired with regard to the fabricated statement about which they have testified; that is, that he told them what they should swear, and induced them to swear it. In agreeing to do so and in doing so,*no matter what the motive, they made themselves • accomplices, or particeps criminis in the offense which was committed by their false testimony. If a witness implicates himself, it is immaterial that he claims to have been coerced. (Davis v. The State, 2 Texas Ct. App., 588; Freeman v. The State, 11 Texas Ct. App., 92.) Our statute declares that “a conviction can not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” (Code Crim. Proc., art. 741.)

It is well settled that a conviction can not be had upon the uncorroborated testimony of two or more accomplices. (Roberts v. The State, 44 Texas, 119; Carroll v. The State, 3 Texas Ct. App., 117; Heath v. The State, 7 Texas Ct. App., 464.) One accomplice can not corroborate himself (Hannahan v. the State, 7 Texas Ct. App., 664), and the evidence of one accomplice can not be corroborated by that of another. (Heath v. The State, 7 Texas Ct. App., 464; Gonzales v. The State, 9 Texas Ct. App., 374; Phillips v. The State, 17 Texas Ct. App., 169.)

Outside the accomplice testimony of the two witnesses, there is no evidence that defendant fabricated and procured and induced them to testify to the same on the coroner’s inquest. Ho one else was present and heard him tell them so, or saw him when the purported statement was made to them by defendant, or saw the parties together and under circumstances which would go to corroborate their testimony on this trial as to that fact.

On May’s trial, the physical facts proven by other witnesses and other evidence directly contradicted and disproved the evidence at the coroner’s inquest, and corroborated these accomplices in swearing that that evidence was untrue and that what they testified criminating May on the trial was true. But that was a different case and a different issue from the one here presented. It is absolutely essential to the guilt of defendant in this proceeding that it should be proven that he told them what to swear and induced them to swear it. Proof that it was false amounts to nothing if the first proposition be not established; because they might have sworn falsely of their own motion, and for aught that appears they might have persuaded defendant to do so, and in either event defendant would not be guilty. The fact that the defendant himself swore on the coroner’s jury as they did does not amount to a corroboration of their statement that he induced or made them swear as they did.

Opinion delivered January 11, 1888.

Under the law and the evidence, we are constrained to hold that the case against the appellant is not established with that certainty which would authorize us to permit it to stand as a precedent, because the accomplice testimony, upon which the conviction rests, has not been corroborated; wherefore the judgment must be reversed and the cause remanded.

Reversed and remanded.