75 S.W.2d 449 | Tex. Crim. App. | 1934
Lead Opinion
The appellant was tried and convicted of the offense of murder, and his punishment assessed at confinement in the State penitentiary for a term of five years.
The record discloses that on the 29th day of August, 1933, Billie Atwood was found dead near the building of the Mayfield Grocery Company between two railroad switch tracks in the town of Longview, Texas. His wife, Ruth Atwood, and the appellant were both indicted and charged with the murder. Mrs. Atwood was tried in September, 1933, convicted and sentenced to serve a term of five years in the penitentiary. The appellant was subsequently tried in March, 1934, and convicted. The State relied alone for a conviction upon the testimony of Ruth Atwood and a negro woman by the name of Emma Samples.
The appellant’s first and main contention is that the State’s evidence is wholly insufficient to warrant and sustain his conviction. In order to determine this question we deem it necessary to set forth the substance of the State’s testimony. Ruth Atwood, the wife of deceased, testified in substance that she and Billie Atwood were married on the 18th day of August, 1933, in the state of Louisiana; that they came to Longview and lived at the Como Hotel; that on the night of August 28th, while she was sitting on the porch of the hotel, the appellant came and asked her to go over to the Santa Fe Shops with him; that she declined to do so, whereupon he drew a pistol and threatened to shoot her unless she complied with his request; that she became frightened at his threat and started with him to the shops, but before reaching the same and after having crossed some of the railroad tracks, she declined to go any further and told the appellant he could kill her if he wanted to, that she was not going to the shops with him; that appellant had his car parked near there and he suggested that they go to his car and sit down so he could talk to her; that they walked over to the car, sat down on the running board, and talked; that while they were sitting there, Billie Atwood came up and said, “Ruth, what are you doing here?”; that appellant immediately jumped up, took an iron bar from his car, and struck Atwood, down; that after he, Atwood, had fallen, he, the appellant, struck him a second blow and when it appeared that Atwood was dead he, appellant, said, “We have to move the body as it is too close to my work”; that appellant took hold of the body by the shoulders and pushed it up on the fender and running board on the driver’s side; that she took hold of his feet and laid them on the running board of the car, and then they
That Mrs. Atwood, under her own testimony, was an accomplice s not even a debatable question, and it is our opinion that the witness Emma Samples by. her testimony brings herself into the category of an accomplice. If her testimony be true, she was informed by Mrs. Atwood that appellant had killed Mr. Atwood; that she saw blood on Mrs. Atwoods’ dress and on appellant’s shirt. She washed the garments of both parties. She hid the appellant’s shirt under the mattress of her bed and when after the trial of Mrs. Atwood the appellant did not come for his shirt she burned it to hide the crime and destroy the evidence, and did not reveal any of the facts upon the trial of Mrs. Ruth Atwood connecting either Mrs. Atwood or the appellant with the crime and she did not make known any of the facts to which she testified upon the trial of the appellant until Mrs. Atwood had been convicted and was serving her term in the penitentiary, but gave false testimony. The testimony given by Emma Samples to which reference is made above is deemed such as to characterize her as an accomplice witness as a matter of law. See article 77, Penal Code, which defines an accessory as follows: “An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence.” We do not deem it necessary to enter upon an elaborate discussion of the subject inasmuch as the same has been passed upon by this court in the case of Largent v. State, 32 S. W. (2d) 652; Blakely v. State, 24 Texas Cr. App., 616; 7 S. W., 233; Littles v. State, 111 Texas Crim. Rep., 500.
It is well settled that a conviction can not be had upon the uncorroborated testimony of two or more accomplices. One accomplice can not corroborate himself, neither can one accomplice corroborate another accomplice, and in support of this proposition we refer to the following authorities: Heath v. State, 7 Texas App., 464; Gonzales v. State, 9 Texas App., 374; Phillips v. State, 17 Texas App., 169. We have searched the record in vain for some testimony which tended to corroborate
Reversed and 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.
Rehearing
on motion for rehearing.
Our former opinion in this case was handed down on the 10th day of October, 1934. Under the well settled rules of this court motions for rehearing must be filed within fifteen days thereafter, or some good and satisfactory reason shown why this is not done. The State brings forward a motion for rehearing which appears to have been mailed in Longview, Texas, on October 26th, and which was received in the office of the clerk of this court on the morning of October 27th. We are unwilling to make one rule apply to the defendant and a different rule to the State.
The motion for rehearing was filed too late, and it is accordingly overruled.
Overruled.