Bishop v. State

This case was reversed and remanded on a former day of this term, and the State has filed a motion for rehearin, and cites us to the case of Beeson v. State, 60 Tex.Crim. Rep., 130 S.W. Rep., 1006, and calls our attention to the fact that the paragraph of the charge of the court on accomplice testimony is an exact copy of a similar paragraph contained in the Beeson case. The objection made to the charge in the Beeson case was that the paragraph "was upon the weight of the testimony," and this court, in an opinion by Judge Cobb, held that objection not tenable, and properly so. In that case no objection was made that the charge did not require the corroborating testimony to be such as "tended to connect the defendant with the commission of the offense," and this court on appeal passed only on such objections as are preserved by bill of exceptions or in the motion for new trial. This is mandatory on us under article 723. In this case the specific objection is made that the charge was erroneous in that it authorized the conviction of defendant if the corroborative evidence was such as tended to support her testimony and which satisfied the jury she was worthy of credit as to the facts essential to constitute the offense of seduction, without also instructing them that the corroborative evidence must tend to connect defendant with the commission of the offense. In the Beeson case, cited by the State's attorney, it is said:

"It may be insisted that the court, in telling the jury that it was sufficient corroboration if facts or circumstances tended to support her testimony and satisfied them she was worthy of credit, limits the jury to the consideration of whether she was worthy of credit, and not whether there were shown by other witnesses such facts as had a tendency to show defendant guilty. If the charge bears that construction, it is erroneous, though perhaps not upon the ground of being on the weight of evidence, but of substituting a test other than the statutory test for determining the matter of corroboration. The accomplice is not corroborated by proof that she is worthy of credit in general, or of good repute. Wisdom v. State, 45 Tex.Crim. Rep., 75 S.W. 22. The statute does not contemplate any kind of proof about or concerning her, but proof about the defendant and the crime. Some fact or circumstance, not coming from her, must attach to him and connect him with the crime testified of by her. He and not the accomplice is on trial. She — rather her testimony — must be corroborated. He must be connected with the offense by the same testimony that corroborates her; as to him to make out guilt, but as to her, as a witness, the corroboration proves nothing. It removes the impotency of her testimony, and permits a conviction if the jury believe her testimony and she has covered all the facts, not because there is corroboration merely, but also that corroboration has removed the bar between the jury's belief of her testimony and their conclusion and verdict of guilt."

The statute requires that the corroborating testimony, to be sufficient, must tend to connect the defendant with the commission of the offense alleged, and the charge of the court should so instruct the jury. See also Oates v. State,51 Tex. Crim. 449; Newman v. State, 55 Tex.Crim. Rep.; Barrett v. State, 55 Tex.Crim. Rep., and Maibaum. v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 378.

The motion for rehearing is overruled.

Overruled.