McDaniel v. StateMcDaniel v. State
- Reporters:
- , ,
- Before:
- Lattimore
Aрpellant was convicted in the District Court of Cass County of the offense of selling intoxicating liquor in violation of the Dean Law, and his punishment fixed at one year in the penitentiary.
• The daté of the alleged sale was prior to November 15, 1921, and the trial must of necessity be in accordance with the lаw as it was before the adoption of the amendment to the Dean Lаw by the Thirty-seventh Legislature. Under the law governing this trial the purchaser of in *355 toxicating liquor was an accomplice. The only question necessary to be discussed herein in order to dispose of this case in our view of it, is the sufficiency of the evidence to corroborate the testimony of thе purchasers of said liquor.
The only witness testifying for the State aside from the accomplices, was the city marshal of the town of Hughes Springs. We present the substance of his testimony. Witness said that about dark on the evening of June 18th he saw Marshall Dameron, Lonnie McDaniel and Willie Sinclare togethеr between the public toilet and a store; that they were near a bunсh of cross ties stacked up; that when he saw them he. dodged behind another pile of ties and watched; that he saw Sinclaire (who was the alleged purchaser of the liquor) put his hand on a tie pile and take his hand down, and then he saw. McDaniel (appellant herein and one of the allеged sellers of the liquor) put his hand “on them and then take it down”; that he stayed there as long as these parties stayed and until they went away, and that he did nоt make any search there about the cross ties; that he saw no money in anybody’s hand or pass from one to the other; and that he did not see аny whisky or bottles or anything of that kind.
Article 801 of our C. C. P., specifically provides thаt a conviction of crime cannot be had upon accomplice testimony, unless corroborated by other evidence tending to сonnect the defendant with the offense charged, and said article сoncludes with the following significant statement: “And the corroboration is not sufficient if it merely shows the commission of the offense.” In the instant case therе is not a word of evidence in the record independent of the testimоny of the accomplices, which will suggest that a crime had been committed. The corpus delicti — the sale of intoxicants — finds no support in the testimony of Mr. Alderson, thе city marshal referred to. It is fundamental that the body of the crime must be prоved. Does Mr. Alderson say he saw any liquor or any bottles, the ordinary contаiner of liquor, on the occasion charged ? He does not. Does he say that he saw any money, or heard the clink of silver, or heard any word sрoken indicative of a commercial transaction at said time? Hе does not. Can the corpus delicti — the body of the crime — be proven by accomрlice testimony ? The opinions of this court hold to the contrary, Crowell v. Stаte, 24 Texas Crim. App., 404; Hansen v. State, 27 Texas Crim. App., 140; Truelove v. State, 44 Texas Crim. Rep., 386; Williams v. State, 82 Texas Crim. Rep., 215; Slaughter v. State, 86 Texas Crim. Rep., 527. If thesе holdings be sound a conviction for crime is unsupported if the fact that а crime has been committed, rests solely on testimony thereof coming from an accomplice. What then? Our conclusion is that if there be no testimony save that of accomplices which tends to show that a crimе had been committed, a conviction cannot be upheld. The questiоn of proof of a witness’ connection with a crime charged as аn accomplice need not be discussed *356 till it be first determined that facts legally sufficient, make it apparent that a crime has been cоmmitted. The proof m this case failing to measure up to this standard, a reversal is ordered.
Reversed and remanded.