20 S.W. 563 | Tex. Crim. App. | 1892
Appellant was indicted for murder committed in the perpetration of robbery. Upon the trial a verdict of guilty was returned by the jury, assessing the death penalty, and from this conviction appellant prosecutes this appeal. The record does not contain an assignment of error, nor have there been briefs filed in this court.
The motion for a new trial attacks the court's charge, because it fails to instruct the jury that the evidence corroborating the statement of the accomplice must tend directly and immediately to connect the defendant with the offense committed. In this connection and upon this subject the court gave in charge the statute; such a charge has been held by repeated decisions of this court to be usually sufficient. Simms v. The State, 8 Texas Ct. App. 230[
If the defendant had desired other charges, submitting more fully the law in this respect, he should have requested the same to have been given. This was not done, nor did he reserve exceptions to the charge as given. Not only does the corroborating evidence directly connect defendant with the homicide, but, if true, it was sufficient to support the conviction, independent of the testimony of the accomplice. The charge, under the facts of this case, was not erroneous, and the court did not err in refusing the new trial for this reason.
Another ground stated in the motion for the new trial is, "the court erred in not instructing the jury that Juliana Estrada was an accomplice, whose testimony should be corroborated." The court did not err in failing to so charge the jury. In the first place, the evidence before us does not connect this witness with the offense so as to constitute her an accomplice, and therefore does not require a charge upon that issue. The fact *243
that she was the wife of one of the guilty participants to the homicide, and knew that a conspiracy had been entered into between her husband and defendant to commit the crime, and subsequently heard the defendant's confession of guilty participancy in the deed, does not constitute her an accomplice. Smith v. The State, 23 Texas Ct. App. 357[
But in the next place, if it be conceded that the facts adduced raise such an issue, in connection with her testimony, still it would not be incumbent upon the court to charge in affirmative terms that she was an accomplice.
It was sufficient to submit that question to the jury as a question of fact to be determined by them, which was done. In cases where that fact is not admitted or placed beyond doubt, it is not improper to submit such question under appropriate instructions to the jury, to be determined by them. Zollicoffer v. The State, 16 Texas Ct. App. 312[
As a usual rule, all questions of fact should, under proper instructions, be submitted to the jury for their determination. But if the facts are admitted to be true, we can see no reason why the court should be debarred from so assuming, nor do we believe such a charge would be upon the weight of the testimony; but if there is an issue arising upon the facts, then the court can not so assume, but must submit such issue to the jury for their determination.
Therefore the court did not err in charging the jury that Antonio Estrada, one of the parties who did the killing, was an accomplice, nor was it error to submit the question of the wife's participancy in or guilty connection with the crime to the jury, under appropriate instructions. The error in this matter, if any, consists in the fact that the question was submitted at all, when the facts before us do not constitute her an accomplice. But of this defendant can not be heard to complain.
It is also urged in the motion for a new trial, that the court erred in failing to charge the jury that the burden of proof was on the State to corroborate the testimony of the accomplice in order to maintain the conviction, and that it was incumbent on defendant to disprove uncorroborated testimony of the accomplice. While it is required of the State to prove the case in order to sustain the conviction, and to corroborate the testimony as required by the statute, yet it is sufficient, usually, as we have seen, to charge the law in this respect as set out in the statute. If such corroboration has not been shown, the conviction can not and will not be permitted to stand. Uncorroborated testimony of an accomplice will not sustain a conviction; and if that be the attitude of the case, when *244 submitted to the jury, it would be the duty of the court to instruct an acquittal, or, in case of conviction, to set aside such conviction.
The law with reference to the burden of proof was charged by the court. The court did not err in this matter. It is contended that the facts do not justify the verdict. Omitting the testimony of Juliana Estrada, it is doubtful if the accomplice, Antonio Estrada, was corroborated as required by the statute. But if the evidence of said Juliana Estrada be true, there is no question of defendant's guilt, even if the testimony of Antonio Estrada be discarded from the case. The defendant denied in most positive term his connection with and participation in the murder and robbery. If he is correct, the two State's witnesses, Estrada, are guilty of perjury in its worst form, and deserve the severest punishment. But if they testified truthfully, then defendant and his confederate, Estrada, are guilty of a most horrible and brutal murder, and one committed in the perpetration of robbery of a feeble and decrepit old man, who was totally unable to contend with either of them in a struggle for his life or his money. The verdict was against the defendant, and we do not feel like disturbing it.
We find no reversible error in the record, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.
