123 S.W.2d 890 | Tex. Crim. App. | 1938
Lead Opinion
The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for two years.
The state relied largely upon the testimony of an accomplice witness. The corroborative evidence is meagerly sufficient. However, the testimony of the accomplice went further than to connect appellant with the commission of the offense, and, if believed, showed appellant's guilt. In submitting an instruction on the subject of accomplice testimony the court advised the jury that they could not convict appellant on the testimony of the accomplice alone unless they first believed that his testimony was true and connected appellant with the offense charged. Continuing the charge, the court required the jury to believe that there was testimony corroborative of the testimony of the accomplice tending to connect the appellant with the offense charged. In connection with said charge, the court failed to require the jury to believe from all of the evidence beyond a reasonable doubt that appellant was guilty. Appellant timely and properly excepted to the charge. The court was in error in using the word "alone." Under the facts, the charge is erroneous in advising the jury that they must believe that the testimony of the accomplice connected the appellant with the commission of the offense. The court should have required the jury to believe that the testimony of the accomplice showed the appellant to be guilty of the offense. Again, the jury should have been required, in connection with the charge on the testimony of the accomplice, to find from all of the evidence beyond a reasonable doubt that the appellant was guilty. In view of the matters mentioned, we are constrained to hold that reversible error is presented. See Grant v. State,
It is shown in bill of exception No. 1 that after the offense had been committed an officer went to appellant's place of business *134 in an effort to secure certain checks which furnished incriminating evidence. Appellant was not present, and, according to the testimony of the officer, he asked appellant's partner for the checks and was unable to secure them. We think this testimony was inadmissible. As to appellant, it was hearsay.
The judgment is reversed and the cause remanded.
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.
Addendum
Through the District Attorney the State has filed a motion for rehearing, the effect of which is to urge that inaccuracies in charge on accomplice testimony should be held harmless. The jury should never be told directly or by inference that they could convict upon the testimony of the accomplice witness"alone," for under no circumstances can that be done under Art. 718 C. C. P. See Abbott v. State, 94 Tex.Crim. R.,
"We have suggested before that in connection with a proper charge on accomplice testimony it is well for the court inevery case to instruct the jury that they must believe from all the evidence that the accused is guilty beyond a reasonable doubt."
Where the trial judge instructs the jury that if they believe *135 the testimony of the accomplice witness is true and that itconnects the defendant with the offense charged, and that the testimony of the non-accomplice witnesses tends to connect him with the commission of said offense it would not be the law to authorize a conviction unless the jury did believe from all the evidence beyond a reasonable doubt that the defendant was guilty. The reason is clear. Evidence of the accomplice witness might connect accused in some way with the offense but not as a principal in its commission, or might fall short of making a complete case, and if evidence of the non-accomplice witnesses only tended to connect accused with the commission of the offense certainly no conviction would be supported.
We call attention to another matter in the charge on accomplice testimony found in the present record which it might be well to avoid on another trial. This was not adverted to in our original opinion. The testimony of the non-accomplice witnesses must tend to connect accused with thecommission of the offense charged, not merely with the offense.
Where the testimony of the accomplice witness does not make out a complete case, or where the trial court chooses to submit the issue in the form found in the instant case we refer to the charge found in Oats v. State, 67 Tex.Crim. R.,
Where the testimony of the accomplice witness makes out a complete case we again refer to Brown v. State,
"A conviction cannot be had upon the testimony of an accomplice unless the jury first believe that the accomplice's evidence is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice's testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission. You are charged that R. E. Adams was an accomplice, if any offense was committed, and you are instructed that you cannot find the defendant guilty upon his *136 testimony unless you first believe that the testimony of said Adams is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the case, outside of the evidence of said Adams, tending to connect the defendant with the commission of the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty."
The foregoing charge has found express approval in the following cases, as well as others not mentioned. Jordan v. State, 62 Tex.Crim. R.,
As supporting the claim that the charge here given should not be held reversibly erroneous we are cited to Jones v. State, 133 Tex.Crim. R.,
The State cites Walker v. State, 104 Tex.Crim. R.,
It is insisted that the evidence objected to as shown in bill of exception number one was admissible under an exception to the general rule which excludes evidence of acts and declarations of a coconspirator in the absence of the one on trial after the conspiracy has ended. We have examined with interest the following cases. People v. Schmidt,
The motion for rehearing is overruled.