72 S.W. 845 | Tex. Crim. App. | 1903
Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal. *558
The State's theory is that the homicide was committed by appellant, in connection with Sam Tittsworth. The State's case mainly depends on Tittsworth's testimony, in connection with the circumstances proved by other witnesses, which the State claims tend to corroborate the accomplice, Tittsworth. Deceased, a negro woman about 19 years of age, was the stepdaughter of Tittsworth, and lived at his house. Appellant lived some two and a half or three miles therefrom. Deceased was last seen alive on Monday morning. She left the field, where she was working with other hands, about 8 or 9 o'clock, went to the house, a short distance off, changed her clothes, and came back through the field, and in a short time went in the direction of Pine Creek, towards an old untenanted house, some quarter of a mile distant. On the following Wednesday her body, which was considerably decomposed, was found in the timber not far from said house. The back of the head was found to have been struck and crushed with some hard or heavy instrument, and there were bruises on her thighs and ankles. Tittsworth, the accomplice, testified, in substance, that appellant had agreed Sunday night before the homicide, Monday morning, to meet deceased and himself where the body was found, for the purpose of producing an abortion on her; that when he approached the place he saw appellant there on the body of deceased, or kneeling close to her body; that when he came up appellant evidently had given her some drug which caused her to froth at the mouth; and she was about to have a fit, and tried to halloo or scream. Appellant told him to come and hold her, and witness caught her hands, when appellant struck her on the back of the head with a heavy stick, and this blow killed deceased. As stated before, there was other testimony tending to corroborate the witness and connect appellant with the homicide. The State also used the testimony of one Jasper Fisher, who, appellant claimed, was an accomplice. This witness testified that deceased was pregnant, which was caused by himself, and that he intended to marry her; and a short time before the homicide agreed to give appellant $5 to produce an abortion on her. This is a sufficient statement of the case to discuss the issues raised in the assignments.
Appellant excepted to that portion of the charge of the court on accomplice testimony; and insists said charge is erroneous, because it assumes the truth of the testimony of the accomplice Tittsworth, and only requires him to be corroborated in order to convict appellant. The court gave a charge on accomplice testimony in connection with both the witnesses Tittsworth and Fisher. As to Fisher, he submitted the issue to the jury, and authorized them to determine whether or not said Fisher was an accomplice; and he also instructed the jury that one accomplice could not corroborate another. As to the witness Tittsworth, the court instructed the jury as follows: "You are instructed that the uncontradicted evidence before you shows that if Malinda Alexander was murdered, Sam Tittsworth was an accomplice to said murder, as the term `accomplice' is above defined to you; and you can *559
not convict defendant upon his testimony unless the same has been sufficiently corroborated by other evidence before you tending to connect defendant as a principal with the commission of the crime charged against him in the indictment." In the succeeding paragraph, the court instructed the jury as follows: "The defendant, Price Jones, can not be convicted in this case unless you believe beyond a reasonable doubt that there is evidence before you independent of the testimony of Sam Tittsworth, and independent also of the testimony of Jasper Fisher, if you find that Jasper Fisher was an accomplice, corroborating the said witness upon material matters which tend to connect said defendant with the commission of the murder charged." In support of his contention that said charge assumes the truth of the accomplice testimony, and is a charge on the weight of the testimony, appellant cites us to the case of Bell v. State,
Appellant also complains that the judgment should be reversed because the testimony of the accomplice is not corroborated by other testimony which tends to connect appellant with the commission of said offense. We are not inclined to agree with appellant in this contention. *560 But the very fact that the outside testimony of a corroborative character is questioned affords a strong reason why the court, in a charge on accomplice testimony, should be careful to present such a charge fairly and without in the least assuming the truth of the accomplice's evidence.
For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.