49 S.W.2d 749 | Tex. Crim. App. | 1932
The offense is murder; the punishment, confinement in the penitentiary for ten years.
The trial was had in Wichita county on a change of venue from Tarrant county. A former appeal is found reported in
Appellant filed a plea of former jeopardy in which he averred, in substance, that he had theretofore been indicted and tried for killing George Terrell, the other negro whom it was claimed by the state he had induced to attempt to rob the bank; that upon said trial for killing George Terrell he had been acquitted; that the killing of Isaac Tate and George Terrell constituted a single transaction, in that it was the theory of the state that appellant' had entered into a conspiracy to induce Tate and Terrell to rob the bank in order that he might kill them and collect a reward therefor; that this issue was submitted in the charge of the court on the trial of appellant for killing Terrell, the instruction being, in effect, that appellant would be guilty of murder in the event he entered into a conspiracy to bring about the robbery notwithstanding the fact that the killing took place in preventing robbery; that the evidence upon the trial in the present case would be the same as that developed in appellant's trial for killing Terrell. The plea set out in some detail the evidence on the former trial. No attempt was made in the plea to negative the existence of elements common to the two killings other than the element involved in the conspiracy to bring about the robbery. The court overruled the plea without hearing evidence.
Subdivision 5 of article 1222, Penal Code, reads as follows: "If homicide takes place in preventing a robbery, it is justifiable if done while the robber is in the presence of the one robbed or is flying (fleeing) with the property taken by him." *312
Appellant contends that, in as much as the facts in the present case and those adduced on his trial for killing Terrell show an attempt to rob the bank and the killing of the two negroes under the reasonable belief that they were fleeing with the spoils of the robbery, he could not be guilty of murder in the absence of a conspiracy to bring about the robbery. He takes the position that the finding of the jury in his trial for killing Terrell that no conspiracy existed finally determined his innocence of the charge involved in the present prosecution. Reliance is had upon the case of Spannell v. State, 83 Tex.Crim. Rep.,
In the present case, if it should be conceded that the issue of conspiracy was determined adversely to the state's contention in appellant's trial for killing Terrell and could not become an issue upon a subsequent, trial for the killing of Tate, it does not necessarily follow that the state would be precluded from convicting appellant for killing Tate. If the killing of Tate was upon malice and not to prevent him from fleeing with property taken from the bank, although Tate might have been actually fleeing with such property at the time he was killed, appellant would be guilty of murder. Surges v. State, 88 Tex.Crim. Rep.,
State's witness Watkins gave testimony damaging to appellant. The evidence raised an issue as to whether this witness was an accomplice. Will Vincent, Gus Boyt and Earl Wilson also gave testimony damaging to appellant. The evidence showed they were accomplice witnesses as a matter of law. In paragraph 12 of his charge, the court instructed the jury that Vincent, Boyt and Wilson were accomplice witnesses, and that it was for the jury to determine, under all the evidence, whether Watkins was an accomplice witness. Following this charge, the jury were instructed as follows: "If under the evidence before you, you should find that the witness Clarence Watkins is an accomplice witness, the next paragraph of this charge will apply to his testimony as well as to the testimony of the witnesses Boyt, Wilson and Vincent, but if you do not so find, then you will not consider his testimony as accomplice testimony in this case."
In the only part of the charge defining the necessity of corroborating the testimony of the accomplice witness, the court instructed the jury as follows: "Now, therefore, if you should find that the witness Watkins is an accomplice you are instructed that you can not convict the defendant upon the testimony of said Watkins, Wilson, Boyt and Vincent, unless you first find and believe from the evidence beyond a reasonable doubt, that the testimony given by them is true, and that it tends to connect the defendant with the offense charged in the indictment and unless you further find that there is other testimony before you tending to connect the defendant with the offense charged, and that such testimony is corroborative of their testimony and such corroboration is not sufficient if it only shows the commission of the offense charged."
Appellant objected to the foregoing charge as follows: "The defendant *314 objects and excepts to paragraph 13 of the court's main charge for the reason that in such instruction wherein it refers to testimony of accomplice witnesses, the instruction with reference to the necessity for corroboration of such accomplice witnesses and each of them particularly with reference to the witnesses Boyt, Vincent and Wilson is made dependent directly upon the jury finding the witness Watson is likewise an accomplice witness."
The exception was well taken. If the jury found that the witness Watkins was not an accomplice they had no guide in the charge touching the necessity of corroboration of the accomplice witnesses Boyt, Vincent and Wilson. In other words, under the court's instruction, the charge relative to the necessity of corroboration and the extent to which the accomplice witnesses were to be corroborated was without application in the absence of a finding that Watkins was an accomplice witness. If the jury concluded that Watkins was not an accomplice witness, then they were at liberty, under the charge of the court, to convict appellant upon the uncorroborated testimony of the accomplice witnesses Boyt, Vincent and Wilson. The opinion is expressed that the charge presents reversible error.
Appellant further objected to the charge touching corroboration of the accomplice witnesses on the ground that the jury were instructed therein that the testimony of the accomplices must "tend" to connect the appellant with the offense charged. The vice in the charge is that the accomplices' testimony must "tend to connect." In condemning a similar charge, this court in Oates v. State,
In condemning a similar charge in Grant v. State, 60 Texas Crim Rep., 358,
See, also, Sealey v. State, 120 Tex.Crim. Rep.,
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.