Graves v. StateGraves v. State
- Reporters:
- , ,
- Before:
- Lattimore, Morrow
B. P. Maddox, of Tahoka, Lockhart, Garrard & Brown, of Lubbock, for appellant.
T. L. Priсe, District Attorney, of Post, and Lloyd W. Davidson, State‘s Attorney, of Austin, for the State.
Appellant was found in possession of property recently theretofore stolen from the house which was burglarized. He made no explanation of his possession when first questioned, and did not testify on the trial. Two boys—sixteen and nineteen years of age—testified in detail that appellant suggested to them the burglary of said house, the door to enter, the use of a piece of iron which he had рlaced near said door to effect entry, the kind of property they would find inside, and that appellant agreed to buy from them such property when stolen and delivered to him. They testified that following said burglary they delivered said property to appellant, and that he paid them in part and promised to pay them the balance. Appellant‘s business was that of a junk dealer. The owner of the house testified to its burglary, the entry at said door, the
We are confronted with the question as to the sufficiency of the corroboration of the accomplice witnesses. Appellant was indicted as an accomplice, that is, it was charged in the indictmеnt that the house in question was burglarized by said boys, but that prior thereto appellant advised, commanded, and encouraged them to commit said offense; he not being personally present when same was committed. Just what should be held corroboration sufficient in such case is not easy tо say. The two boys who testified for the state were accomplice witnesses. The rule is laid down by statute,
Appellant seems to contend that by this term is meant only the agreement to commit; the urging, or advising, or encouraging to commit, the alleged burglary. This can not be sound. In Cooper v. State, 69 Texas Crim. Rep., 405, Judge Davidson lucidly and correctly calls attention to and draws the distinction between the offense of conspiracy and that of being an accomplice to a given crime, bringing out strongly the point that it takes more—both in averment and proof—to constitute the latter offense than the other. The offense of conspiracy is complete when the parties thereto have agreed to commit a felony. Not so in this case. Thеre must be here averment and proof that a burglary was committed, and that prior thereto the appellant advised or encouraged those so doing to commit said offense.
It is said in many cases that to be sufficient the corroborative evidence need not be by itself sufficient to convict, nor need it corroborate the testimony of the accomplices in detail. Middleton v. State, 86 Texas Crim. Rep., 307; Thomas v. State, 89 Texas Crim. Rep., 129. Circumstances may furnish corroboration sufficient. Boone v. State, 90 Texas Crim. Rep., 374. We know of no authority holding it necessary that the evidence relied on as corroborative must extend to every part
Appellant‘s next contention, based also on an exception to the charge, is that the court below should have applied the doctrine of reasonable doubt in paragraph eight of the charge wherein the court told the jury thаt they could not convict unless they believed there was other testimony in the case tending to connect appellant with the offense, if any, committed. The reasonable doubt was plainly presented in paragraph seven of the charge, wherein the law was applied to thе facts of the case, and again in paragraph ten of the charge, where said doctrine was applied to the whole case. We think this sufficient.
Appellant next urges that the charge was erroneous in not telling the jury that the corroboration, to be sufficient, must have been as tо material matters. The charge followed the form approved in cases too numerous to mention, and told the jury they could not convict on the testimony of the accomplices, unless the jury believed said testimony to be true, and that same showed the guilt of appellant, and further told them that they could not then convict unless they further believed that there was other testimony in the case corroborative of that of the accomplices and tending to connect appellant with the offense, if any, committed; and that the corroboration was not sufficient if it mеrely showed the commission of the offense. Standfield v. State, 84 Texas Crim. Rep., 437, and Goodwin v. State, 38 S. W. (2d) 806, are cited. It was not intended in the Standfield case to change the rule applicable to charges on accomplice testimony laid down in Oates v. State, 48 Texas Crim. Rep., 131, and approved and followed in many subsequent cases collated in Goodwin‘s case, supra, in which a charge omitting
Whetstone v. State, 79 Texas Crim. Rep., 104, opinion by Judge Davidson, is in principle much like the one before us. Judge Morrow in Meredith v. State, 85 Texas Crim. Rep., 239, says: “The question here is not one of the sufficiency of the circumstances to show guilt, but their cogency as tending to corroborate the accomplice testimony.” In Fitzgerald v. State, 87 Texas Crim. Rep., 34, we said that the sufficiency of the testimony to corroborate that of the accomplice, being primarily for the jury, would not be disturbed by this court under the facts. See, also, Hunt v. State, 89 Texas Crim. Rep., 211; Lopez v. State, 92 Texas Crim. Rep., 97; Mehlman v. State, 92 Texas Crim. Rep., 557.
There is another rule well settled, which has often been given application, same being a rule of exclusion under which the testimony of the accomplice is laid aside and the other testimony examined to see if there be left facts or circumstances tending to connect the acсused with the crime charged. We are of opinion that, if we left out the testimony of the accomplices in this case, there still remains the fact that appellant was found in possession of the recently stolen property, of which possession he made no explanation, аnd that this, added to the proof showing that there was in fact a burglary, is sufficient to tend to connect appellant with the crime charged. On any fair theory we believe that there is in this case testimony tending to connect appellant with the commission of “the offense committed,” towit, being an accomplice to the crime of burglary.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
HAWKINS, JUDGE.—I agree to the disposition of the case. The opinion of affirmance may be subject to the construction that, if the principals in the burglary who testified as accomplice witnesses аgainst accused were corroborated in their tes-
MORROW, PRESIDING JUDGE, and HAWKINS, JUDGE (concurring).—It is conceived that a conviction can be sustained alone upon the existenсe of facts in evidence which meet the measure of the law defining accomplice testimony in exhibiting evidence which tends to corroborate the statement of the principal offenders that they were advised by the appellant to commit the burglary. The offense of which the appellant is charged—that of an accomplice—is unlike that of a conspiracy. The nature of a conspiracy is such that the offense is committed by the agreement. One, therefore, who is charged with a conspiracy, can be convicted upon proof suffiсient to corroborate the testimony of an accomplice going to show that the conspiracy was made and that the accused was a party thereto. The conspiracy is the offense, not the consummation of the subject of the conspiracy. One charged аs an accomplice, however, by advising the commission of a subsequent offense in advance of its commission, does not become an accomplice until the substantive offense is committed; that is to say, if in the present case the appellant advised the burglary, he would not bе guilty as an accomplice unless the burglary was committed. It therefore follows that the law demands that there be evidence sufficient to corroborate the statements of the accomplices that the appellant was their adviser.
It was shown by the testimony of the perpetrators of the burglary that they committed the offense. That a burglary was committed was also shown by other testimony. Corroboration of the testimony of Frazier and Dyer that they committed the burglary is made by the witnesses Connolly and Parker, and its sufficiency is not open to question. The accomplicеs claimed that soon after the burglary they delivered the fruits of the crime to the appellant. The evidence shows that the fruits of the crime were found in the possession of the appellant soon after the offense of burglary had been committed.
With the foregoing remarks, we concur in the affirmance of the judgment.
ON APPELLANT‘S MOTION FOR REHEARING.
MORROW, PRESIDING JUDGE.—A careful review of the evidence heard upon the trial has been made in the light of the appellant‘s motion for rehearing, and the conclusion has been reached that this court would not be authorized to overturn the verdict of the jury.
The motion for rehearing is overruled.
Overruled.
ON APPELLANT‘S MOTION FOR REHEARING.
CHRISTIAN, JUDGE.—Appellant urges that the trial court was in error in declining to instruсt the jury that the testimony of G. B. Frazier and Eby Dyer relative to breaking and entering the burglarized building could not be used for the purpose of determining appellant‘s guilt as an accomplice, but could only be considered by the jury on the question as to whether Dyer and Frazier were guilty of the offense оf burglary. It was pointed out in the original opinion that Dyer and Frazier testified in detail that appellant suggested to them the burglary of the house, the manner in which the entry should be effected, and the disposition to be made of the property taken from said house. Further, it was pointed out that these witnesses testified that they burglarized the house in the manner suggested by appellant and delivered to him the property taken therefrom. Part of the property taken from the burglarized house was found in appellant‘s possession. He made no explanation of his possession when first questioned, and did not testify on the trial. The witnesses Dyer and Frazier testified in person. Their version of the transaction did not come from confessions made by them, but from their lips as witnesses as they confronted appellant in the trial of his case. No declarations or admissions made out of court by sаid witnesses were introduced in evidence. Under the circumstances, the opinion is expressed that the exception to the charge was
The motion for rehearing is overruled.
Overruled.
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.