Chumley v. State

White, Presiding Judge.

We think it most apparent from the statement of facts in this case that the evidence of the State’s witness John Ward, upon which this conviction mainly rests, must be treated as accomplice testimony, and that to warrant the conviction upon this testimony it must have been corroborated by other testimony as to his material statements inculpatory of defendant. We do not believe the other facts do sufficiently corroborate this witness’s evidence. Without Ward’s evidence no case is established against defendant, and in the light of other undisputed facts this evidence comes in most questionable shape. He was employed to look after and water this animal by the owner; he says he saw the defendant with it twice in his possession, and that defendant notified him that he, defendant, intended to appropriate it; all of this, he says, occurred a year before he, Ward, disclosed the fact to the owner, though the latter had offered fifty dollars reward for it.

Defendant’s theory of the case was that he had purchased, or rather traded for, the mule from this same witness Ward, giving him in the trade a sorrel mare and §35. Ward admits that he owned a sorrel mare, but claims he purchased her from defendant. Defendant’s theory of the case, with the time, place, and circumstances of his trade with Ward for the mule, was testified to by his witness John Estes, who further testified that one Ervin Estes was also present at said trade and saw it made. Defendant made an application for a continuance on account of the absence of this witness, Ervin Estes, which was overruled by the court for want of diligence, it being a second application, and again overruled in connection with the motion for a new trial because, in the opinion of the court, the proposed testimony, in the light of the other evidence, was not probably true.

Was there sufficient diligence, and was the evidence probably true? These questions are so fully, fairly, ably, and to our minds conclusively presented and argued in the brief of counsel for appellant, that we refer to his brief (which the Reporter will publish) for the reasons which induce us to answer them in the affirmative.

We are of opinion that the court erred in refusing the new trial, and we are further of opinion that the accomplice testimony, in addition to its own questionable character, is not sufficiently corroborated' to warrant a conviction, which appears to have been based mainly upon it.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.