Lead Opinion
Appellant was convicted of murder in the first degree, and his punishment was assessed at death, and he prosecutes this appeal. There is but one bill of exceptions in the record. That is to the failure of the cоurt to charge on accomplices’ testimony. The principal State’s witnesses in this case were John Rickard, Gus Colburn, and Emmett Colburn. Two of them, John Rickard and Gus Colburn, unquestionably participated in the killing of the deceased in such manner as to render them accomplices. As to Emmett Colburn, there is some testimony tending to show that he was an accomplice—certainly
*638
■enough to submit to the j nry the question as to whether or not he was suсh. Our statute (Art. 781, Code Crim. Proc., 1895) provides: “A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” By a long line of decisions, it has been held that, where the State in a criminal prosecution introduces •evidence оf accomplices, it is incumbent on the court to give in charge to the jury the above article, and then, in all proper cases, to define who are accomplices, or what it takes to constitute persons accomplices in the .commission of crime. This charge should be given, whether asked or not; but it is especially incumbent on the court, when the matter is pointed out by a bill of exceptions, to give the law on accomplices’ testimony in charge to the jury. See, Winn v. State, 15 Tex. Crim. App., 171; Sitterlee v. State, 13 Tex. Crim. App., 587; Howell v. State, 16 Tex. Crim. App., 93; Coffelt v. State, 19 Tex. Crim. App., 436; Fuller v. State, Id., 380; Anderson v. State, 20 Tex. Crim. App., 312; Stone v. State, 22 Tex. Crim. App., 185; Boren v. State, 23 Tex. Crim. App., 28; Stewart v. State, 35 Tex. Crim. Rep., 174; Ballew v. State (Tex. Crim. App.)
Reversed and Remanded.
Hurt, Presiding Judge, absent.
Addendum
ON MOTION FOB REHEARING.
The indictment charged that appellant and Jim Martin, with express malice aforethought, did kill Nancy Jane Crocker, by shooting her with a pistol. We may concede this is a charge of murder in the first degree. Appellant pleaded guilty when arraigned. The plea of guilty admits as true every fact stated in the indictment. By pleading guilty, defendant confessed his guilt as charged in the' indictment, but, if none is charged therein, none is con *639 fessed. After the plea of guilty, there is nothing for the court to do other than, to pronounce the sentence. In capital cases, however, the courts usually show a reluctance to accept and record such confessions, often advising the prisoner to retrаct the confession, and plead not guilty. The obvious reason of this is, the defendant may not fully understand the nature of the charge. lie may be actuated by a morbid desire for punishment, etc. Harris’ Crim. Law, 373. The accused cоuld plead guilty to any charge—to that of murder or any other crime. The above propositions are found in the common law. Do they prevail in this State? They do not. The accused has the right to plead guilty to any charge, but when such plea is entered there is something else to be done. The court cannot at once enter judgment against the accused. Art. 554, Code Crim. Proc., 1895, provides: “If the defendant plead guilty he shall be admоnished by the court of the consequences; and no such plea shall be received, unless it plainly appear that he is sane and is uninfluenced by any considerations of fear, by any persuasion or delusive .hoрe of pardon, prompting him to confess his guilt.” This provision of the Code applies to all cases of felony in which the defendant pleads guilty. Art. 555, Code Crim. Proc., 1895, provides: “Where a defendant in a case of felony persists in pleading guilty, if the punishment of the offense is not absolutely fixed by law, and beyond the discretion of the jury to graduate in any manner, a jury shall be empaneled to assess the punishment, and evidence submitted to enablе them to decide thereupon.” This article applies to all eases of felony, because the punishment is not fixed by law. beyond the right of the jury to graduate same. If the punishment be absolutely fixed by law, then the court shоuld proceed to judgment as at common law. We have an article specially devoted to jileas of guilty to the charge of murder. Art. 712, Penal Code, 1895, provides: “If the jury shall find any person guilty of murder, they shall also find by their verdict whether it is of the first or second degree.” This must be done, whether the jilea be guilty or not guilty. The jury must say in their verdict whether the defendant is guilty of murder of the first or second degree; jirescribing the jiunishment will not suffice. The same article also jiro vides: “And if any person shall plead guilty to an indictment for murder, a jury shall be summoned to find of what degree of murder he is guilty, and in either case they shall also find the punishment.” From this article evidently two things must be done in all cases in which the defendant pleads guilty to an indictment for murder: First, a jury must be summoned; and, second, evidence must be introduced. A jmy must be summoned as is required by law— that is, in the same manner as in all murder cases—unless waived by defendant. A jury must be empanеled, and this cannot be waived. As the jury “must find of what degree of murder defendant is guilty,” evidence must be introduced. Why? To enable the jury to find the degree of murder, and jirojierly fix the punishment. At common law the defendant could jilead guilty to murder, and the judgment and sentence follow, without the intervention of a jury. But our Code will not per *640 mit the defendant to plead guilty to murder so as to avoid the necessity of a jury. He may plead guilty to an indictment for murder, but the-law of this Stаte will not permit him to be hanged or punished for murder of the first degree merely upon such a plea; nor will the law of this State permit him to be punished for murder of the second degree upon such a plea. A jury must be empaneled to find the degree. A jury must be empaneled to find the degree of murder. This cannot be done-without evidence—legal and competent evidence. Nor can this be done wisely and legally by the jury in the absence of proper instructions from the court. They must be informed of the elements of murder of the first degree, and, if necessary, as well of murder of the second degree. The policy of this State being to protect thе accused from the punishment affixed to capital cases—unless such a case is made by the evidence —the law requires that the degree of murder shall be judicially determined; that is, by a jury in the usual manner, and under the еvidence and proper instructions of the court. The degree of murder must be found by a jury under the evidence. The jury must find the degree under a plea of guilty, just as they must find it under a plea of not guilty. The trial of this issue, to-wit: murder of the first or second degree, is-precisely the same under a plea of guilty as a plea of not guilty. This being so, to convict of the higher degree, there must be competent and legal evidence establishing this degree; and if the jury should entertain a reasonable doubt as to whether the murder was of the first degree, they should acquit of that degree and find murder of the second degree. The jury in this case found the appellant guilty of murder of the first degrеe, and fixed his punishment at death. This finding of the jury of murder of the first degree is based mainly upon the testimony of accomplices. TJpon the trial, counsel for appellant excepted to the charge of the сourt, because it failed to submit to the jury the rule pertaining to the testimony of accomplices. This should have been done. The jury should have been told that appellant could not be convicted of murder of thе first degree upon the uncorroborated testimony of accomplices. It is contended that this instruction was unnecessary; that the plea of guilty was ample corroboration. We have seen that the law will not permit a defendant to plead guilty to an indictment for murder of the first degree, so as to dispense with evidence and a verdict of the jury; that the degree of murder must be determined by the same methods as if defendant had рleaded not guilty. Now, while the plea of guilty is a most solemn confession of guilt, it is not a confession of guilt of murder of the first degree. The law will not permit it to have this effect. It is a confession, and may be treated and used tо corroborate the testimony of an accomplice. But, while all of this may be true, still the court must submit the matter to the jury. It would be a startling proposition to hold that, because there was evidence corroborating the testimony of an accomplice, therefore the court should refuse or omit to instruct the jury upon the necessity of corroborating such testimony. Let us suppose that witnesses swear to facts which *641 makе the homicide murder of the first degree, and other witnesses, who are accomplices, are introduced by the State, and testify to facts and circumstances constituting murder of the same degree, should the court rеfuse to instruct the jury that the law requires the testimony of these accomplices to be corroborated? Evidently this would be no reason for failing to submit to the jury the rule contained in Article 781, Code Crim. Proc., 1895. Why? Because the jury is the judge of the credibility of the witnesses and the weight to be given their testimony, whether accomplices or not. We have said that the law of this State will not permit a defendant to plead guilty to murder of the first degree. He may plead guilty to murder, but the degree must be found by a jury. If defendant can plead guilty to murder of the first degree, so as to dispense with a jury, the introduction of evidence—in fact a trial upon the degree—then Article 712 is unmitigatеd nonsense, without object or purpose. How, whenever a fact is to be found by a jury, upon the truth of which the life and liberty of the citizen depends, and the testimony of an accomplice is relied upon to establish the truth of such fact, the rule contained in Article 781 should'be submitted to the jury. The motion for rehearing filed by the State in this cause is overruled.
Motion Overruled.