39 S.W.2d 55 | Tex. Crim. App. | 1931
Lead Opinion
The offense is unlawfully selling morphine; the punishment, a fine of $100 and confinement in jail for 365 days.
The term of court at which appellant was convicted may by law continue more than eight weeks, and did continue from the first day of September, 1930, until the first day of November, 1930, which was approximately nine weeks. The trial court entered an order granting appellant ten days in addition to the time allowed by law in which to prepare and file his bills of exception and statement of facts. This being a misdemeanor case and the term of court having continued more than eight weeks, appellant was entitled under the law to thirty days after final judgment in which to file his statement of facts and bills of exception. Subdivision 5 of article 760, C. C. P. Including the ten days additional time allowed by the court, appellant had forty days after final judgment in which to file the bills of exception and statement of facts. The record discloses that said instruments were filed more than forty days after final judgment. This was too late. See Stewart v. State,
The judgment is affirmed.
Affirmed.
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.
Addendum
In connection with his motion for rehearing, appellant has filed affidavits wherein it is shown that it was not due to the negligence of appellant or his attorney that the statement of facts and bills of exception were not filed in time. Upon the showing made the statement of facts and bills of exception will be considered.
It was charged in the complaint and information that appellant "did unlawfully sell, furnish and give away five grains of morphine to Albert Nunn." Appellant made a motion to quash the complaint and information, but failed to specify as one of the grounds that they were duplicitous. Article 720, Penal Code, denounces as offenses the selling, furnishing and giving away of morphine. One commits an offense who sells morphine, and likewise it is an offense to make a gift of morphine. Each is a separate offense. See Todd v. State,
Appellant contends that the evidence is insufficient to support the conviction. Appellant and one Mosher roomed together in a house in Dallas, there being evidence in the record that appellant controlled the house. Appellant testified that he had nothing to do with the control of the house, but merely paid his part of the rent for the room in which he and Mosher lived. Two Federal narcotic agents employed Albert Nunn, who was a morphine addict, to go to the house in which appellant roomed for the purpose of purchasing morphine. In addition to paying Nunn a stipulated sum for his services, the officers furnished him three $1 bills which they had marked. Nunn went to the house and returned in about thirty minutes with some morphine, which he delivered to the officers. The officers then entered the house and made a search. They found the three $1 bills in Mosher's pocket. As they entered the house appellant was sitting on the porch getting a shave, and Mosher was in the room he and appellant occupied. The officers found no morphine in the possession of appellant. There is nothing in the record showing possession of morphine by Mosher at the time the search was made. Nunn testified that he purchased the morphine from Mosher after appellant had instructed Mosher to make the sale to him. He said that appellant was sitting on the porch getting a shave when he entered the house and that after appellant told Mosher to sell him the morphine he and Mosher left the porch and went into Mosher's room where Mosher delivered the morphine to him. Nunn admitted that he had been employed by the officers and directed by them to the house where Boyd lived for the purpose of purchasing morphine. Appellant denied that he had anything to do with the sale of morphine, and declared that he possessed no morphine at the time Nunn came to the house. He testified further that he was sitting on the porch getting a shave when Nunn came in; that he did not know Nunn's purpose in coming to the house; that he did not tell Mosher to sell morphine to Nunn; that he was not present when the sale was made, and knew nothing about it. The barber who was shaving appellant testified that appellant did not instruct Mosher to sell morphine to Nunn, and that appellant did not enter the house with Mosher and Nunn. Mosher admitted that he sold the morphine to Nunn, but declared that it belonged to appellant and was sold under appellant's direction.
Mosher was an accomplice witness by virtue of the fact that he sold the morphine. It was undisputed that Nunn deliberately and intentionally entered the house for the purpose of bringing about a sale of morphine to him in order that prosecution might be instituted against the seller. We quote from Bush v. State, 68 Tex.Crim. Rep.,
This court, in Huggins v. State, 85 Tex.Crim. Rep.,
We have no statute exempting the purchaser of morphine from the rule applicable to accomplice testimony. Hence, under the facts reflected by the record, Nunn was an accomplice witness. He testified that he frequently bought morphine from parties for his own use, and that he did not report the sales to the authorities. It was only when he was paid to bring about a violation of the law that he made report to the authorities. His sole motive in the present case was to bring about a violation of the law for the purpose of receiving stipulated sums from the enforcement officers.
It was incumbent upon the state to corroborate Nunn and Mosher. A conviction cannot be had "upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the *537
offense committed"; and "the corroboration is not sufficient if it merely shows the commission of the offense", but it must tend to connect the accused with its commission. Article 718, C. C. P.; Durham v. State, 106 Tex.Crim. Rep.,
The test as to the sufficiency of the corroboration is to eliminate from the case the evidence of the accomplice witness, and then examine the evidence of the other witness with the view of ascertaining if there be inculpatory evidence; that is, evidence of incriminating character, which tends to connect the accused with the commission of the offense. If there be such evidence, the corroboration is sufficient; otherwise, not. Durham v. State, supra; Jones v. State,
Appellant's motion for rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is now 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.