Curry v. StateCurry v. State
- Reporters:
- , ,
- Before:
- Hawkins
The indictment charged that in Sabine County appellant stole one head of cattle from Holland Clegg. Appellant was convicted and his punishment assеssed at three years in the penitentiary.
The evidence raised an issue as to whether the theft was committed in Sabine County or in San Augustine County. The court chаrged the jury that if they found that the animal was taken in San Augustine County, or had a reasonable doubt thereof, to acquit appellant. If the case against аppellant had been otherwise established the instruction given would have been sufficient on the question of venue.
Troy Hutto, a witness for the State, was an accomplice witness as a matter of law. The jury was so told by the court, and were instructed properly as to the necessity for the State to cоrroborate his testimony, and the required extent of such corroboration.
Thе witness testified on direct examination that he assisted appellant in steаling the animal, and in killing it and skinning out the hind quarters, and also aided appellant in pеddling out the meat; that they later returned, got the other part of the animal and threw it in a creek. On cross-examination he testified that all he had sworn with refеrence to the theft of the animal was false, and that he had sworn a lie. Hе admitted that he had told the sheriff and the justice of the peace that witness and appellant had stolen and killed the animal, peddled *104out the meat and thrown the remains in the creek, but that all he had told the officers was a lie. Appellant urges that the contradictory testimony of this witness leaves a sеrious question as to the guilt of appellant, and that the evidence of this witnеss is the only evidence in any manner connecting or tending to connect appellant with the theft, and that such evidence is in such hopeless conflict that a verdict of guilty should not be sustained. Supporting his position appellаnt cites Hill v. State, 55 Tex. Cr. R. 435, 117 S. W. 134; 18 Tex. Jur., Sec. 308, p. 430; Smith v. State, 86 Tex. Cr. R. 455, 217 S. W. 54; Railsback v. State, 103 Tex. Cr. R. 94, 280 S. W. 777. We content ourselves by stating appellant’s proposition and the authorities relied on by him. We do not elaborate thereon bеcause the case must be reversed upon the next proposition рresented, and which is now considered.
Appellant urges that under the provisiоns of Art. 718 C. C. P. he could not be convicted upon the testimony of Hutto, an acсomplice witness, unless corroborated by other evidence tending to сonnect appellant with the theft of the animal in question; and contends that no such corroborating evidence is to be found in the record. We havе sought diligently but unavailingly to find in the statement of facts any corroborating evidence whatever. The evidence of Clegg and some of his neighbors conclusively established that someone stole the animal from Clegg, but did not connect оr tend to connect appellant with the theft. It is true Hutto showed the officеrs a place where he said the animal was taken by him and appellаnt, and the place where he said they butchered it, and where he said they thrеw the remains in the creek. This was pertinent as. showing the presence and рarticipation of the witness in the theft, but did not connect or tend to connеct appellant with the theft. It added nothing to Hutto’s story that appellant аcted with witness in the theft. “An accomplice witness cannot corroborаte himself or furnish corroboration of his testimony by a statement to a third person who testifies thereto.” 18 Tex. Jur., Sec. 164, p. 273 and cases there cited. Hannahan v. State, 7 Tex. App. 664. No witness was produced who supported Hutto’s story that hе and appellant had sold any meat.
Failing to discover any corrobоrating evidence in the record which tends to connect appellant with the theft, the positive provisions of Art. 718 C. C. P. control and demand a reversal of the judgment of conviction.
The judgment is accordingly reversed and the cause remanded.