31 S.W. 673 | Tex. Crim. App. | 1895
Appellant was tried and convicted for the murder of Henry Kirk, the conviction being for murder of the second degree, with punishment fixed at five years in the penitentiary.
Was the corpus delicti proven? This must be done beyond a reasonable doubt. We proceed to answer the question upon the hypothesis that James Bagley was an accomplice to the crime. The corpus delicti can not be proven by the uncorroborated testimony of an accomplice. Nor can the corpus delicti be proven alone by the confession of the accused. Must it be proven independently of the confession? This is not necessary. Can the confession aid, corroborate the testimony of the accomplice, and, when both are taken together, be sufficient to prove the corpus delicti beyond a reasonable doubt? We answer, yes, if certain facts are proved — namely, the body of the deceased, or portions thereof, must be found or seen and identified, so as to establish the fact that the person charged to have been killed was dead; that the person charged to have been killed came to his death by the culpable act or agency of another person. Now, Bagley swears that he was present when appellant shot and killed Kirk; that on the next morning he assisted (by keeping watch) appellant in concealing the corpse. In this testimony we have all the facts which make up the corpus delicti — Kirk's dead body, and that death was caused by the guilty agency of the accused. But was Bagley an accomplice? Concede this; will not the law permit the prosecution to corroborate him as to this fact, as well as to any other corroborative fact? If not, why not? No reason can be given in support of the negative. We are not left in the dark upon this question. The People v. Jaehne,
By a number of witnesses, the State found that Bagley bore a good reputation for truth, etc. This evidence was opposed by appellant, because Bagley was an accomplice to the crime; appellant contending that an accomplice can not be sustained, when attacked, by evidence of good character for truth and veracity. We are not aware of an authority making this exception to the general rule. An accomplice can be sustained by such proof just as any other witness.
Appellant proposed to prove by Roll Kirk, that Joseph Bagley stated to him in 1883 that deceased had made a trip with him and his brother James from Mesquite to their mother's place, about five miles southeast of Mesquite, in the spring of the year, and that, on the day subsequent to their arrival there, deceased complained of being sick, and said, if he felt well enough, he was going home; that they left the deceased lying under a tree, asleep, when they went about their work, and when they returned he was gone, and they never saw the deceased again, etc. Joseph Bagley had not testified in regard to this matter, nor to any other fact that had the slightest bearing on the case. There was no error in rejecting this evidence.
Objection is made to the charge of the court defining an accomplice. We have carefully read and examined the charge on this subject, and, when viewed as a whole, it is as favorable as the appellant should require. It is law, though some part thereof is not applicable to this case, but that which is without application is absolutely harmless.
Appellant swore that he was not at the place of the homicide when deceased was killed, and had nothing whatever to do with the killing, etc., but was at another place. The court failed to charge the jury with reference to an alibi. For this omission in the charge appellant excepted at the time. Ayres v. The State, 21 Texas Crim. App., 399. The charge should have been given. Such a charge was a part of the law of the case. Hunnicutt v. The State, 18 Texas Crim. App., 498; Rider v. The State, 26 Texas Crim. App., 334. Furthermore, the error of the court in failing to instruct the jury with reference thereto was intensified by the court instructing the jury upon the law of self-defense. Quintana v. The State, 29 Texas Crim. App., 401. There was not the slightest circumstance presenting this defense. Appellant relied upon no such defense, and for the court to instruct thereon was calculated (evidently) to impress the jury with the belief that the judge believed appellant present at the homicide.
This is a remarkable case, but we have not time to discuss the facts. The Reporter will publish the facts. But while the case is unparalleled in a great many particulars, it is not so mysterious as the verdict of the jury. Attending this homicide, if there was a homicide, there is not one circumstance of mitigation or extenuation. It was a deliberate, fiendish assassination, for which the perpetrator should have been *551 hanged. Now, what was the verdict? Murder in the second degree, with the terrible penalty of five years' confinement in the penitentiary! What a mockery on justice, if appellant be guilty! The verdict can be explained only upon the hypothesis that the jury entertained a serious doubt of the guilt of the accused, for no sane and honest jury could have believed appellant guilty beyond a reasonable doubt of this most dastardly assassination, and assess such a penalty. Our views of the facts of this case may not accord with that of the jury, but we can afford no relief, because, if Bagley and the witnesses who swear to the confession told the truth, appellant was evidently guilty. The jury, and not this court, are the judges of the credibility of the witnesses.
For failing to instruct the jury on alibi, the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.
