*1 record, Finding judgment no error will be affirmed.
Affirmеd. ON MOTION FOR REHEARING. Presiding Judg e . A carefulreview of the evi light dence heard the trial has been rehearing, motion for and the conclusion has been
reached that court overturn the would not be authorized to jury. verdict of the rehearing
The motion for is overruled.
Overruled. Jack Graves v. The State.
No. 15465. Delivered 1933. February Rehearing Denied March in 58 S. W. Reported *2 the case. states Tahoka, Maddox, Lockhart, Brown, B. P. of Garrard & Lubbock, Price, Attorney, Post, Lloyd
L.T. District David- Austin, son, Attorney, of for the State. State’s dge. being LATTIMORE, Conviction foran Ju burglary; punishment, years peni two to the crime tentiary.
Appellant possession proрerty was found burglarized. He stolen from the which was theretofore house possession questioned, explanation of his when first made no testify boys trial. nine- Two and did not —sixteen appellant suggested age years of in detail that teen —testified house, enter, door to the use them of said effect piece placed had near said of a of iron he door inside, entry, property kind find would agreed property buy from them such when following They bur- testified that said and delivered glary they him. property and that he delivered said Ap- paid part promised pay them the balance. them in pellant’s junk owner of dealer. The that of a business was door, entry at said the house testified to its property
loss of the boys, described and its recovery, part being of it found in part bеing brought neighboring town, explana- from a with no got there, except tion of how boys from one said took said to said town and there it. sold county The sheriff of the piece testified that he found a prize open burglar- iron that had been used to door of building, lеading ized and that he saw tracks from said etc. question
areWe confronted with as to the corroboration of the witnesses. is, indicted as an it was in the indict- ment that boys, said prior appellant advised, commanded, but that thereto and en- couraged оffense; them to commit personally said he not *3 present when same was committed. Just what should be held say. corroboration easy sufficient in such case is not to boys two who testified for the state were witnesses. statute, by P., The rule is laid down article C. C. tending in must be the case “other evidence to connect the de- fendant with the offense committed.” do mean What “the offense committed?” Appellant only seems to contend that term is meant agreement commit; urging, advising, encourag to or or ing commit, alleged burglary. can not This be sound. Cooper Rep., 69 Texas Crim. Davidson
lucidly correctly calls attention to and draws distinc tion between the conspiracy offense of and that of an ac complice given crime, bringing strongly point to a out it takes prоof more —both in averment and constitute the —to latter conspiracy offense than the other. The offense of is com plete parties agreed felony. when the thereto have commit a Not so in proof this case. There must be here averment and burglary committed, prior ap and that thereto pellant encouraged doing advised or those so to commit said offense. many
It is said in cases that to be sufficient the corrobo convict, rative evidence need not be itself sufficiеnt to nor testimony accomplices need it corroborate the in detail. Rep., 307; Middleton v. Thomas v. may Texas Crim. cor Circumstances furnish roboration sufficient. Boone v. holding We authority necessary know of no part
evidence every relied on as corroborative must extend to in or element “the offense committed.” The authorities hold contrary. going further, Without into details we have this case deemed sufficient cases which might be appel- cited to show the absolute connection of рart lant with that material of the offense here or committed, towit, so as might same he burglary. convicted of said offense That say, tois proof we have here uncontradicted from witnesses appellant’s possession other than after same wаs taken from said of said owner, suggestion any explanation without on part is, property. of how he came such Such opinion, our to corroborate that of the committed,” and tends to connect with “the offense towit, being an to the crime of Aрpellant’s contention, exception next that based also charge, applied court below should have eight charge paragraph doctrine of reasonable doubt in wherein the court told the could not convict unless believed thеre was case tend- ing offense, any, connect with the if committed. plainly presented paragraph The reasonable doubt seven charge, applied of the case, wherein the law the facts again paragraph charge, ten оf the where said applied doctrine was to the whole case. think this suffi- We cient. urges next was erroneous
telling jury corroboration, sufficient, the be to must have been as to material matters. The followed the approved mention, form cases too numerous to and told the they jury testimony could on the not convict testimony true, unless the believed said and to guilt further them that same showed told could believed that not then convict unless further there was other in the corroborative of case tending aсcomplices the fense, the of to connect with committed; any, if the corroboration not and that merely if it the offense. showed commission of State, Rep., 437, 84 Standfield v. Texas and Goodwin v. Crim. State, (2d) 806, 38 S. are cited. It in the intended change charges applicable to on ac Standfield case rule State, complice testimony laid v. down in Oates Rep., 131, approved and followed case, charge omitting supra,
collated Goodwin’s in which a 280 v. approved. Denson cites word “material” wаs applica State, Rep., fail to see Texas We 47 Crim. finding pos in the in that case testified to witness
tion. No burglary, property, the fruits of the of the accused session in that recently house. state taken from the accused as proof statements of relied on of certain case way corroboration, court deemed in no corroborative. which this 199, State, Rep., cited. 100 Crim. is also Weatherred v. Texas case, nothing oppos find in same We have examined this ing above. the conclusion we have announced State, Rep., 104, v. Texas Whetstone 79 Crim. Judge Davidson, principle us. like the one before is in much Rep., State, v. 85 Texas Grim. Morrow Meredith sufficiency of says: “The here is not one of the tending guilt, cogency circumstances show but Fitzgerald acсomplice testimony.” v. corroborate the Rep., Texas Crim. said being pri testimony to corroborate that of the marily jury, court under not be disturbed this would See, also, v. the facts. Hunt Rep., 97; Mehlman v.
Lopez 92 Texas Crim. Texas Crim. settled, often been
There another rule which has well given being application, whiсh of exclusion under same a rule tes- laid and the aside timony tending left or circumstances examined to see if there be facts charged. are We connect the accused with crime opinion that, if we left out the case, fact there still remains the property, found in possession proof showing this, to the explanation, added he made no is sufficient there was fact any charged. On tend to connect with the crime testimony tend- theory fair we believe that there is in this case ing “the offense cоnnect the commission of with committed,” towit, crime of bur- to the glary.
Finding record, judgment will be no error affirmed.
Affirmed. Judg HAWKINS, I agree disposition case. of the e . subject may The to the construction affirmance be that, principals burglary if the accom testified as who plice against tes- witnesses сorroborated their accused were
231 timony burglary, as to commission of the would be suffi upon cient corroboration their absence of claim that appellant burglary. advised them to commit The law is by present writer. a' so understood like the prеsent, accomplice upon corroborated witnesses must be point accomplice which would render the accused an to the ul State, timate offense committed. Lankford v. S. W.
808; W., v. Lamb 101 Texas Crim. S. 1038; W., 379; Hall v. 106 S. Rep., 199, W., v. Weatherred 272 S. 15619, opinion February 15, No. Jordan Presiding HAWKINS, (con- Judge, curring). is conceived that a conviction can be sustained —It alone the existence of facts evidence which meet the defining accomplice testimony exhibiting measure of the law prin- evidence which tends to corrоborate the statement of the cipal they by offenders that were advised to com- charged mit The offense which the is accomplice conspiracy. —that an unlike that a The —is conspiracy nature of a is such that the offense is committеd agreement. One, therefore, charged who con- is with a spiracy, upon proof can be convicted to corroborate going accomplice the spiracy an con- show that party the accused was a thereto. cоnspiracy offense, The ject is the not the consummation the sub- conspiracy. One an as how- ever, by advising the commission offense of. commission, advance of its does not become an until committed; say, substantive offense if in the present case the advised he would not burglary be unless the was committed. It therefore follows that the law demands that evi- dence sufficient to corroborate the statements of accom- plices adviser. perpetrators
It was shown burglary burglary committed the offеnse. That a testimony. was committed was also shown Corrobora- Dyer tion of the of Frazier committed Connolly Parker, burglary is made the witnesses open question. and its is not The burglary they claimed that soon after the delivered fruits of the crime to the evidence shows appel- fruits the crime were found in the lant soon been committed. after the offense had *6 finding possession Upon property the the in the of stolen possession explanation it. If made of his he no unexplained pos- he had been with the his рroperty the stolen would have been suffi- session of According him to the accom- cient convict plices, appellant in of the commission the advised advance buy the thereof. Part of the that he would the fruits possession property aрpellant’s at his found in the stolen according where, placed it was at to the night upon with the direction of the and his assist- witnesses, than that made the ance. Other is no presence property explanation the in the possession The silence of one dis- stolen, possession covery property recently under in his and control, many justify the his has held in cases to exclusive been unlawfully presumption property into that the stolen came C., p. 1332. Ann. Tex. P. hands of the accused. See Branch’s foregoing remarks, in affirmance concur With the judgment. MOTION FOR REHEARING. APPELLANT’S ON Appellant urges CHRISTIAN, dge. the trial court Ju declining jury in in to instruct error testi breaking Dyer mony Eby relative to of G. B. Frazier and building pur entering burglarized for the could not be used determining guilt pose but as only as could whether be considerеd Dyer were of the offense bur and Frazier original opinion Dyer glary. pointed It was out suggested to them the Frazier testified detail entry burglary of the manner should property effected, disposition and the to be made Further, pointed out that these house. it wаs taken from said man house witnesses testified suggested by appellant to him the ner delivered from the bur property taken taken therefrom. Part of the glarized appellant’s possession. He made was found house questioned, explanation no when first of his Dyer testify Frazier did not on the trial. The witnesses did not person. the transaction testified Their version of lips them, as from come from confessions witnesses but his case. trial of confronted said wit No made out court declarations or admissions circumstances, Under the nesses were introduced in evidence. exception expressed to the sup- not well taken. porting In his brief cites proposition principal the confession of the *7 accomplice only prove prin- on the trial of the admissiblе cipal’s guilt,
and must be limited of the court purpose for which it was introduced. An- See Branch’s Code, by State, W., notated Penal sec. Aven 82. S. Manifestly, appli- relied are not present cable to the situation. rehearing motion for
The is overruled.
Overruled. foregoing opinion The Appeals the Commission of has Judges been Appeals examined of the Court of Criminal approved the Court.
Joe The Griffin v. State.
No. 15373. Delivered March Reported in 58 S. W.
The the case. states Casey, Longview,
Jas. T. Lloyd Davidson, Attorney, Austin, State’s for the State. g Jud e. The unlawful Presiding intoxicating liquor purpose offense; for the pen sale is alty penitentiary assessed at confinement in the year. for one filling station was searched four