Fite v. State

• LATTIMORE, -J.

Appellant was convicted in the district court of Hopkins county of burglary, and. his punishment ■ fixed at two •years in the penitentiary.

Burglary of Bud Hatch’s smokehouse in the nighttime was charged. Middlings, a ham, jars of preserves, and onions were taken. No one was at home. Hatch never saw any of said property afterwards. Tracks near his barn were observed by him the next morning. They led in the direction of appellant’s home some quarter óf a mile distant. Near Hatch’s barn ran a public trail much used. Whether said tracks appeared fresh is not stated. No description of them was given, save that one was small and one “tolerably large.” No peculiarity of such tracks was mentioned. Two men swore for the state that the morning after the alleged burglary they went to appellant’s house about 9 o’clock. He, Simon Horn, and Wyatt Young were on the porch, and as the two-men approached appellant} went into, the house. They stopped on the porch where the other two men were pealing pears, and appellant came back out in 15 or 20 minutes. Both witnesses state that there was freshly plowed ground between appellant’s barn and his house. Another state witness testified that he was at appellant’s house the morning after said burglary and smelled some meat that “smelled awful good” and saw some lean meat on the table. This is the state’s case, aside from the testimony of Simon Horn, who swore that .he, appellant, and one Bennett burglarized Hatch’s smokehouse the night before; that they got jars of preserves, which they buried between appellant’s house and his barn and then plowed the ground over same; that they got some middlings, which Bennett earried away; that they got a ham and some onions; and that part of the ham was cooked for breakfast next morning.

We have carefully considered these facts in the light of our statute which forbids the affirmance of a judgment had upon the testimony of an. accomplice unless other evidence in the case, aside from that of such accomplice, tend si to connect the accused wifcbi the commission of the offense, and the effect of such evidence must extend beyond a showing that the offense wasi committed. It must tend to show that the accused is the guilty party. There was no testimony showing the size of appellant’s feet, or attempting to show that his footgear would make a track similar in size to those found by Mr. Hatch, nor was there any effort made .along this line to show similarity of tracks made by Simon Horn or Bennett. The tracks might have been made weeks or months before the night of the- burglary as far as we,can learn from the record.: No search, under the plowed ground between appellant’s bam, and •house was made to ascertain if fruit was huried there or if there were indications that anything had ever been buried there. The witness who smelled the good meat at appellant’s house the next morning was asked pointedly if it was ham and seems to have declined to answer affirmatively. Appellant’s wife testified that she did fry some ham sent her by her sister on that morning; that she fried enough for her two small children, who •were not well. The sister of said wife testified that she sent them ham on said occasion. No effort was made by the state to show that ■appellant’s going into his house the next •morning and his return 15 or 20 minutes later had any guilty signification, save by the testimony of Simon Horn. Bennett, who was accused by Horn, took the stand and testified that he did not accompany appellant and Horn in a burglarious expedition on the night in question. Wyatt Young, who seems •to have been charged in the same connection with the matter and to have been acquitted, ■also took the stand and denied any knowledge of any' such transa ition. If the state could show similarity of tracks with those of appellant and Horn, or that there was Something to indicate that the tracks had been made the night of the burglary, or that something ■ was found under the plowed ground indicating that jars of fruit had been buried there, or that some other property ■claimed to have been taken in said burglary was in some way connected with appellant’s premises or possession, or if any of these facts were in the possession of the state, or ■could have been shown, they do not appear in the record.

■ Eor the lack of testimony to corroborate that of the accomplice, the judgment of the trial court must be reversed; and it is, so Ordered.