44 Tex. 119 | Tex. | 1875
A careful examination of the evidence as set forth in the statement of facts has satisfied
The rule established by the code “is in accordance with what is the practice of courts generally,” and forbids a conviction on the testimony of an accomplice, unless corroborated “by other evidence tending to connect the defendant with the offense committed,” and this corroboration it has been held must be “in a material matter.” (Bruton v. State, 21 Tex., 348.)
The evidence shows that the defendant was in company with Ake on the day and afternoon preceding the night of the theft, but this appears to be true of others who are not charged with the theft. Of itself this fact, whilst it might excite inquiry, does not under the circumstances seem to have any tendency to connect the defendant with the offense.
On the morning after the theft the horse which Ake had been riding was in the pasture of John Roberts, defendant’s father. There is no evidence to connect defendant with the fact. The witness Ake speaks of going by Jim Roberts’ house and of going to Jim Roberts, and the fair inference from this and other testimony is that Jim Roberts had a home of his own, and did not live with John Roberts. There is nothing to show that defendant had possession or charge of the horse which Ake had been riding.
Another witness introduced by the defense testified to meeting five or six men leading horses. Who they or any of them were does not appear, nor does it appear that the fact has any significance as to defendant.
We are unable to see that any material fact whatever, connecting or tending to connect defendant with the theft, has been established by any other testimony, and because
Wm. Ledbetter, another party jointly indicted, and as to whom a nolle prosequi had been entered, was also introduced as a witness, but his testimony does not appear to have been at all material as to defendant.
The evidence of Ledbetter, whatever tendency it may have as to those parties identified by him as coming hack to his house on the night of the theft, has no tendency to connect the defendant with the offense. (See Coleman v. The State, ante, 109.)
The defendant’s counsel asked a charge to the effect that one who had been jointly indicted was an accomplice, and refers to the case of Barrara v. State, 42 Tex., 260. In that case the record disclosed that a party, jointly indicted, had agreed to testify on behalf of the State, on the condition that the prosecution should he dismissed as to him, and that in pursuance of that agreement a nolle prosequi had been entered, and the party introduced as a witness. It was held that the testimony of such a witness should be regarded as that of an accomplice. But it is certainly possible that an indictment may be dismissed as to a party who is afterwards called on to testify, and who is yet not in fact an accomplice, and has not procured the dismissal by agreeing to testify. If, in fact, the public prosecutor has, in the interest of public justice, negotiated with the witness as an accomplice, it might well be expected that the fact should be made known.
It is scarcely necessary to say that so much of the charge asked as embodied the proposition that a conviction cannot he had on the uncorroborated testimony of two or more accomplices, is well-settled law. (Arch. Cr. Prac. and Pl., p. 154.)
Because the court erred in overruling the motion for new trial, the judgment is reversed and the cause remanded.
Reversed and remanded.