22 Tex. Ct. App. 642 | Tex. App. | 1887
Objections to the indictment contained in appellant’s motion in arrest of judgment were not maintainable, and it was not error to overrule said motion.
It was not error to permit the State, over objections of defendant, to introduce as witnesses against him the two particepes criminis, Juan Bravo and Atenogenes Segura, who were charged with the same offense by separate indictments. Parties charged as principals, accomplices, or accessories, whether in the same indictment or different indictments, can not be introduced as witnesses for one another. This is statutory. (Code Crim. Proc., Art. 731.) But we have no statute that parties so situated may not be introduced as witnesses against one another. In so far as the prosecution is concerned, the rule at common law with regard to the admissibility of such evidence is unchanged by our statute. “At common law, accomplices, under certain exceptions, before conviction and sentence, were competent witnesses either for or against each other, and this rule has not been so changed by the code of this State as to disqualify such witnesses from testifying in behalf of the State.” (Meyers v. The State, 3 Texas Ct. App., 8.)
Whilst the witness Juan Bravo was testifying, the district attorney handed witness a paper purporting to be a certificate of the brand of .the Kennedy Pasture Company, the alleged owner of the animal in question—a representation of the brand being contained in said certificate. After witness had examined the same, the district attorney, for the .purpose of identifying this brand with the one on the stolen animal, asked said witness the following question, viz: “Is this the brand that was on the animal killed ?” Defendant, by counsel, objected because the ques-. tion was leading, but the court overruled the objection and permitted the witness to answer.
“A leading question is one which may be answered by yes or no, and suggests the desired answer,” (Mathis v. Buford, 17
The testimony in the case tended to implicate the State’s witness Tobias as a particeps criminis in the theft of the animal. The witness Segura says: “Tobias himself buried the bones (of the stolen calf) inside the jacal.” * * * “ I do not know how long Tobias remained. He certainly remained until the meat was finished.”
In the sixth paragraph of his charge to the jury, the court properly instructs them with regard to the necessity of corroboration in so far as the accomplice testimony of the witnesses Segura and Bravo was concerned, but does not charge the necessity of corroboration with regard to the testimony of Tobias, in case the jury should conclude from the evidence that this witness also was a particeps criminis. Upon this omission of the court defendant’s counsel based a special exception to the charge, and again called the error to the attention of the court in the motion for a new trial. It was an essential part of the law of the case that the jury should have been properly instructed upon this phase of the evidence, in as much as this witness was corroborating the testimony of the other accomplices.
For the errors indicated, the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.
