*1 with of itself and sufficient evidence be quire that the corroborative jury to but if the testimony guilt, show accomplice out the aid of the commis testimony and it shows the accomplice is true believes the then corrobora accused, and the of the offense sion directly and tends if is to material matter and sufficient it tion.is immediately commission connect the accused with the Wright Jones v. offense 47 Texas Crim. v. App., testimony appears it appellant’s 4 Texas From 529. uniform; requested pro Pope that when that soldier stating so Pope appellant cure declined to do whisky some unlawful; ap Pope put money that it on the that pellant ; appellant promptly got pint that half bottles went and four whisky put Pope them at a and did place down where could them; obtain get them, that appellant him and while he claims to saw protested have Pope, money. it to The trans retained actually action occurred, as it by appellant "was as admitted materially different from that except described the State’s witness that testimony appears from their appellant acting wil lingly, while from his, contrary. testimony claims the If the which alleged to have accomplices given any been weight to be jury, it, being particulars corroborated named suffi cient to support jury the conclusion of in doing things which resulted in the "obtaining soldier whisky, in tended that he should have it. As however, stated above it is op our inion that'the State’s accomplices witnesses were not as a matter of law and having any waived decision jury as to whether accomplices in fact, we are authorized to dis turb the verdict. The motion for rehearing is overruled.
Overruled. Joe Walsh The State. April
No. 5199. Decided 1919. 1.—Murder—Preliminary Statement—Practice District Court. Where, upon murder, arraignment plea trial of after of not
guilty, requested required defendant State to make a state provided P., ment of case as its article Í17 C. which C. the State refused do, require statement, the court refused make State, the State to such Following the same was reversible error. House v. 75 Texas Crim. Rep., 338, other cases. —Same—Preliminary 2. Statement—Practice District Court. Where, upon murder, preliminary trial of defendant desired to make a beginning
statement before G. C. introduce under article 717 P., granted. the same should —Same—Charge Court—Principals. murder, Where, trial defendant’s evidence showed companions deceased, fired the and there shots killed 1919] evidence that he was even fired defendant shots that killed the deceased or that armed, jury it was reversible error to instruct de *2 aforethought by shooting
fendant malice killed the deceased him with pistol, Following State, etc., to find him of murder. Oates v. 51 Rep., T'exas Crim. 449. —Same—Charge Court—Principals—Weight 4. of of Evidence. Where, upon murder, theory trial of the State’s was that defendant
present encouraged parties homicide, aided or the and who committed the participate and defendant claimed that he- did in manner therein knowledge crime, charge etc., and no had on law of court principals practically every subject of which covered statute on the men- penal code, case, apply in the tioned did not and law to the facts reversible error. Party—Imputing of 5.—Same—Confessions Third Crime to Another. Where, upon murder, appeal trial of showed an record on party charged by separate other who was indictment with of the murder person killed, alleged the same whom defendant and penalty against third who died in him, was convicted and the death and assessed jail execution, dying before his and while in' such condition made a confession that defendant innocent of the crime and that present previous defendant was knowledge when crime was committed but no it, the intention of others to it commit and no took Following State, the same was inadmissible in evidence. Bowen v. Texas 55 Texas 3 617, cases, distinguishing App., State, Crim. and other v. Blocker Rep., 30; State, Davidson, Crim. ing Pace v. 61 Texas 436. Crim. Presid dissenting. Judge, Stated—Imputing 6.—Same—Rule Crime to Another. While is that one the settled rule of crime show that accused person person
another the offense committed where the such other yet accused, consistent innocence must be competent evidence, a rule a confession admission of charged the crime of which the committed defendant hearsay evidence, mere and not admissible where it does not constitute gesta. State, Following App., of the res Dubose 10 v. cases, distinguishing State, supra, other Blocker v. v. and Pace supra. State, Stated—Imputing Crime 7.—Same—Case to Another—Codefendant’s Declara- tion. Where, upon murder, the evidence trial of showed that defendant admitedly present prosecu- place, time took at the homicide and the theory princi- tion him was that he acted with others as specific pal, there was declaration the declarant de- killed dying ceased, necessarily declarations such declarant did defendant, exculpate the such declarations the defendant was innocent although the crime was committed were when evi- inadmissible having Besides, such declarant been indicted convicted dence. for the charged against as that defendant would have same offense in- an Davidson, dissenting. Presiding Judge, competent witness. District Court Tarrant. Tried from the below Appeal before judge. Hosey, E. George Hon. murder; years from a conviction Appeal seven penalty, im- prisonment penitentiary. in the states the case. 14—85 T. C. R. 85
210 Texas charge of Houtchens, On question appellant. & Graves 449; 513 Crim. State, Texas principles: Oates v. court 96; Chapman v. State, id., id., 9; Title Burgess v. id., id., Bogan State, 49 Holsey v. preliminary statement: On opinion. Rep., 35, and cited cases Brown, M. Attorney General, Jesse Hendricks, B. Assistant E. Attorney County, for the County of. Tarrant Appellant was of mur- Presiding Judge. convicted DAVIDSON, years penitentiary. given der and seven others, two case The State’s together, acting killed agreement together and in pursuance of an *3 robbery. Appellant denies for the of purpose Liston James parties, and acting was the conspiracy, he with and that they Liston. It is to kill intended of the fact that was not aware and in ad- beggar, appellant a sort of street also shown that trinkets which and a few little lead pencils a vendor of dition very living it was a living; a made a sought make he he saloons, and and one; hung around the streets precarious that he very repute, drank to It high a order and excess. places of not drinking or had been for three four is in evidence that he also heavily prior at the the homicide. pretty to and time of That weeks homicide, perhaps day he day on of the before drinking heavily expense; alleged co-conspirators and at their two money, that one of men furnished he had these him lunch; buy buying a instead of fifty with which to a cents bought cents, of beer with and had he fifteen lunch bottle thirty-five killing cents his at on the time other night about o’clock on the of the homicide’his Liston. That two awhile, gone separated him, from were companions returned in an appellant requested joy-ride. fo auto, They quite take whisky auto, beer and lot of the rear of which was occupied being the other appellant, parties two front of the car, driving. They them one of drove around town and a part unacquainted. it seems point of it where At one stopping car, or both of his after alighted codefendants it, from inquired May for a certain proved number Street, deceased, be the residence of Appellant Liston. in the remained car. Leaving place, they residence, near stopped went Liston’s car, alighted, the two codefendants went in the rear of Liston’s house, gallery and on his back shot and killed and robbed him. in the Appellant time, ear of and the evidence shows got out of the when shooting car he heard the and started along or at least was away, the street the sidewalk a short dis- away from the tance front of Liston’s residence. When the two 19W] get they made Liston’s residence returned from
parties from rapidly away. Several where they blocks drove car, time at the Whether the car was wrecked. the homicide occurred doubt, not is in some were it or of the wreck codefendants it, they seen wreck, just or before were. time of but about the ap- the car was wrecked leaving car, when the direction of the r- injured. beer in the pellant of the out and Some was thrown whisky. by appellant, One and some had been used empty. partially That he whisky to have been showed bottles associating day preceding entire two codefendants fact, may as a and there night at treated conceded homicide they associating together is show had been evidence to some expense, day drinking and drink- before. That he at their ing have followed heavily also 'be That seemed to conceded. he drinking expense purpose them around for at their questionable fact, hung nor is it to be doubted around anybody’s pay expense saloons drank at for the who stated, theory, therefore, drinks. The they State’s was that were acting together; they together killing went purpose for the Appellant’s theory totally Liston. was that he was unaware of the fact codefendants intended to kill Liston, and that the first knew it was when he heard the shooting; that he did not even know Liston, and did not know who shooting at, were why they shooting. There .testimony also from the de- fendant to the effect that his codefendants came from Liston’s when trying residence he was escape, make his and one of them stuck *4 pistol a to his stomach and get forced him to back in the ear. "When they they left the car left pistols their in the car, or beside the car on ground; they the carry did pistols away with them. They them, fled country, and one of known in the record as jo, Jo name whose seems to have Miller, was arrested the next day at Appellant Amarillo. put arrested and in jail. The question as to his state of intoxication became an issue the trial far so as it related to that condition at the of time his arrest. It may be assumed as a fact here that he was- drunk, and the evidence showed he been drinking had pretty heavily for time,—some some of the evidence for shows three or four weeks. This is a sufficient of statement the case to presented treat the matters for revision. When the case was called trial, arraignment for and after the and plea, appellant requested required that the State be to make a State- of provided ment its case as 717, Article C' C. P. The court asked State’s counsel if Being desired to make statement. negative, answered require the court refused to them to make a statement. We are of under this record this was error. respect The decisions this are to the that re- effect should be quired, especially possible and appellant it was that would be injured the refusal make the This was a of to statement. case 212 Texas evidence, closely
circumstantial contested to of his criminally whether was connected with the acts codefendants, and matter it seems to have been some what difficult fully appointed the State’s counsel to understand the nature of matter, case. There are decisions that have reviewed this several case, and from of it was error them, under the circumstances this require for the as re court not to to make the statement State quired 717, P.; Holsey Art. C. statute. See C. App., 35; Texas Owen Crim. this of House v. 338. For a discussion State, supra. matter see House v. be-
In make a statement to same connection desired testimony. beginning part This in fore introduction his to judge is qualification of the court refused. The substance of the a full statement permitted this he to make effect: defendant except jury supra, his provision case to the under the Article Rev, W. jury permit him to to the what the state proper here Teel, E. Mrs. It be Hawkins and would be. reviewing action connction, both in these matters state testify as well permit refusing these witnesses of the court jury which to the rejecting appellant’s as in statement that repeating exception show, make. without he offered to These bills seriatim, testified, per- she been them mitted, that Mrs. Teel would have missionary Union worker connected with the
that she was a City was to Worth; her duties of Fort Mission with jail prisoners County, of Tarrant to advise visit with discharge of 'welfare; in the spiritual that while reference to their such, Jo-Joe, Miller, alias acquainted she Joe duties became is now soul; him that Joe and often talked with dead, about her day her, told he talked with before he died dying and would dying fully he was he he realized that was her before get well, to_ to make confession desired Miller, alias died; also that Joe and she testified would have innocent, Walsh, Jo-Joe, Joe defendant, stated her that Joe he, the said charged, he is crime with which Walsh, no know- was committed but had when the crime committed, any going to crime was ledge whatever To the same effect would he was not crime whatever. *5 ap- testimony judge W. E. The of Rev. Hawkins. been have not that the witness would both bills with the statement proves crime. any guilty connection testify admitted "Jo-Joe that record, question throughout the entire shows without evidence The party case, Miller another both that Joe and State’s it was the and purpose for the in his house and killed him upon Liston fired day robbery, Joe and the next one robbery, and did commit money Amarillo, from Liston part of taken at and was arrested money that as the .Liston and identified person on his found was 1919] The possession. had in opinion his Under this record we are of this testi- money gone jury, appel- should to and in have that view it permitted lant’s been to in counsel should have make the statement regard any testimony jury. this matter In if to to event was rejecting it, admissible it error in and another trial if the be defendant to will desires make statement permitted closely by to be In used him. this connection it was issue, contested and or innocence of involved being defendant. parties, The claimed State associating being riding car, with them in and and with them the near parties the. house at the time left him in car and Liston, went in therefore, prin- as a that, killed he cipal. theory was that he reason these circumstances only knowledge parties going of what but do, were cooperating with them. The defendant’s claim was he was that drunk and nothing it; requested knew he was that take joy doing anything ride and idea of purpose had no their criminal, his being idea to take simply invited them joya whisky.' ride drink their beer and' All of the evidence ex- idea anything cludes the did further than stated. pistol He shot, theory had no and fired no was not If his armed. true, punishable. correct was not If the State’s guilty partieipaey evidence sufficient show that he had bringing guilty. about homicide as a be principal, he would This much has been order to make the further observation said that it has been the law Texas since Dubose v. App., 230, may by any legitimate evi-
Grim. accused show guilty. guilty, parties dence that he was not and that were applies positive This to cases alike of circumstantial evidence. Miller, alias of the tests with reference of Joe One to the admission trial, his Jo-Joe’s statement be himself was on would that Miller confession, or what stated was his statement, the witness would have original against testimony, would with- have him as admissible out impeachment. reference to the "We are Miller’s statement have been admissible him, would have exonerated the defendant from criminal connection with the homicide. These cases in Mr. Branch’s be found collated Grim. Sec. 336. The rules be that an accused is Law. seems entitled to introduce evidence parties that another offense, confession, position to have committed the motive, threats, ad- matters character are also other of that why committed missible to show a reason others and defendant quite ‘the offense. Mr. Branch cites a number of section cases said sustaining proposition. this char- It is also stated that before of testimony may pertinent acter must admissible there be some proximity evidence such other in such might as would reasonably offense make it probable that he *6 85 Texas guilty proposition by quite the same. That is sustained adjudicated number of Appeals cases from the Court of Criminal found also If collated Mr. Branch. of defendant is the crime parties, was committed other and the presence shows their of their when the crime was committed statements original testimony made out of is for court admissible as the accused. Harrison v. It Rep., a conceded fact that Jo-Joe alias Miller and another killed Liston. any The participated or not whether the defendant way in principal. that transaction as make him a The confession killing Miller would have and exonerated assumed the blame always necessary defendant. It is not that the statement of the be a If direct confession. the statements are of such crime, nature guilty participancy as to show the declarant's may rely' upon the accused that to show that he did not commit the crime. on the We are of it was error court to refuse the evidence. beyond find charged jury they should
The court aforethought kill reasonable malice doubt that with his by shooting pistol frbm the effect Liston him with a ed James shooting died, then said the said James Liston Objection urged to find him of the offense of murder. any charge. fired shot this There was no evidence Liston. The entire evidence excludes the idea that killed shot, charge armed. We think did fire or even State, 42 erroneous. Leslie v. Texas Oats Crim. 449. See cases for a discussion those unnecessary go an of this question. We deen into elaboration proposition very thoroughly. as those matter cases discuss the charge
The court also in embodied definition the several statutes as to principals. practically who were This seems to cover subject every mentioned in There statute the Penal Code. application was no principals of the doctrine of the court unless it be following charge: found in the you defendant,
“If find and believe from the evidence that shortly prior charged, to the commission of the offense knowledge charged that the offense as was to have been committed go and that knowledge joy without such he was asked to on a ride persons committing he, said offense or' that the said Joe Walsh, present offense, at the commission of or that he the said committing did not offense, persons know the unlawful intent of said encourage by jes- or that he did not aid or words acts, offense, actually engaged tures those commission of or that actually kept present prevent watch so as to the inter- ruption engaged offense, those the commission of the or that aid, procure arms, did not or means of kind to assist executing commission of the offense while others were the unlawful .7 919]
act, agree commission of offense or that he did not to the de- you was committed then find the when same will guilty.” fendant not *7 much principals, and of
This seems to cover the entire domain of charge up- applicable Besides, given, it not to the case. as it weight omitting on evidence, even of reason- able propositions. doubt to or all of of these Some by by statutes embodied charge the court his were called for charge facts. The were no facts authorized conviction when there support charge. the statements of If at any standpoint all from evidence, strongest light, of taken its by reason of parties, the fact he was with the went to the place where the homicide was committed, and out at the car by or on the street near when the homicide was There committed. procured no arms, evidence that anything except go or did along parties at the going time of their place, to the killing when occurred, by. theory of near the State then under these facts would be limited to the fact that he knowledge had of or this killing, consented to and was present, presence encouraged aided or doing parties what Upon did. another trial the court will submit the State from standpoint omitting the evidence, phases all other statutory principals definition of except directfy those which apply to the facts of the ease.
For the reasons judgment indicated the will be reversed and the cause remanded.
Reversed and remanded. OPINION ON REHEARING.
April 23, 1919. Judge. MORROW, from We understand the record that Joe Miller, alias Jo-Joe, charged by separate indict- ment with murder of the person. same Miller and con- was tried victed and the penalty death assessed him. He not exe- cuted but died jail, during his illness, according while he. his statement, was in dying condition, he stated to Mrs. Peel and Rev. Hawkins that he desired to amake confession before he died, that Joe Walsh was crime; innocent of the that Walsh was present when the crime was committed but previous had not knowl- edge of the intention to it, commit part -and .took Ap- in it. pellant sought, through of Mrs. Hawkins, Peel and prove that the statements were made them. In a m note 131 Amer. State Reports, p. 778, it is said: “The general laid rule down is, the courts that a confession or ad- mission on the of a person third that he committed the crime Texas having hear charged committed is mere the defendant is in favor of the defendant where say and in evidence not admissible gestae.” Accompanying the res it does not constitute á authorities, including case statement the citation numerous State, 9 v. App., v. Holt Bowen 28; Hodge App., 571; 24 S. W. Horton syllabus quote. S. W. Bowen case we From the voluntarily acknowledged com “That com was not mitted the accused was trial crime which the pentent heard who persons evidence for the accused to elicit from 2, acknowledgment, p. Ev., In vol. made.” Wharton’s Crim. “Allowing it is innocence the self-assumed proof said: beyond disorganize blame of would soon the reach of the law procedure, criminal affirmative and to admit declarations as of some one other than the declarant would subversive .be *8 principles.” constitutional n It is may settled that one show that another accused of crime person the charged, committed the offense with which he is where guilt of such other the would he consistent with innocence by competent of the accused. But must evidence. proof this be State, Dubose v. App., Texas Crim. In the case Blocker v. Rep., 30, qualified general Texas Crim. this the court d excluding rule party the admission hearsay, of the thir as holding that in prosecution supported by case the was cir where cumstantial evidence alone that in with connection circumstances tending to show that another and not accused had the motive offense, opportunity to commit the the declaration of such third person that he had committed it should be as one of the received in circumstance favor the appellant on trial. in that accused The case offered throwing circumstances suspicion upon Aaron Massey,—in»connection with his declaration that he killed the de testimony The ceased court said: “We are of ad missible the under strong circumstances stated. The motive was as part Massey on the appellant.- as'on the It would be proposition self-evident Massey that if Aaron killed the deceased, homicide, appellant bing present aiding not in manner in the appellant guilty, would not as we understand rec the ord, nothing there is in indicating the appellant record that the together homicide, Massey Aaron acting in the if either of them killed controlling the The deceased.” reasons the in court case, in "departing general Blocker’s from the rule with reference reception parties, declarations of do not obtain in case, as we construe the record. Miller’s admission that he case, in killed the deceased the instant if had made he said ad mission, guilt. would not appellant’s have been inconsistent with the appellant admittedly present The at the time the took homicide place, prosecution against upon and the him The 1919] companion as principal. acted with Miller and another true, upon it is fact that relied circumstances establish the participant homicide, though presence was established the. established, testimony. being thus Miller presence direct His deceased, killed the it would specific declaration that he had made a necessarily But exculpated appellant. not as disclosed record, specific declaration, such but made no pres that Miller was offered went to show declared ence of witnesses took no mentioned killing received Blocker’s deceased. Similar Rep., 436, case Pace was held admissible in grounds, though upon we assume that it received the same fully out. as Accepting the facts are set the Blocker case evidence, establishing exception general" rule of an virtue exception murder, of which one accused of whom there only, rebutting circumstantial evidence circumstance use party deceased, the declaration of a third killed the where killing be inconsistent deceased the third accused on or consistent inno trial with his cense, we do not think offered in instant case evidence phase arising was within this rule. A of the law Blocker presented case, case not' discussed in the Pace in the fact that Miller had been indicted for the offense which the appel same with charged, lant was and at the made the time he declaration which reproduce upon trial, offered he was under sentence participation of death conviction of in the same homicide with Miller, indictment, charged. charged by being which the accused was offense, the same express provisions virtue *9 791 not a competent article of our C. C. P. witness for disqualified by further under 788 article his conviction of a felony. If, therefore, appellant offered him as witness to he, appellant, present that while prove at the time homicide him, place, took that no was taken in testimony it Miller’s objection upon would have been excluded on either or both of the If grounds phase stated. the contention of on the discussing sound, case we are it would illustrate what seems to the writer an anomalous condition of the rules evidence in this express put because while under statutes he could not Miller prove by stand and on the witness him under oath fact ex prove culpating appellant, he exculpating could an declaration made oath, Miller, court, not under and out of party, introducing making the third as witness and had made the Miller statements him. rehearing
I think the State’s motion for should be overruled and the case reversed and remanded for another I trial. cannot see my way clear, however, to accede to the correctness of view declarations of Miller would be admissible evidence.
Overruled. 85 Judge. reversed, and the ease should be LATTIMORE, I think testimony as to what of witnesses Peel and Hawkins to them is said inadmissible. Presiding Judge.
DAVIDSON, I believethe of the two gone jury, witnesses as to statements of Miller should have do not subject. but care to write further on the Blocker v. Rep., 30; Pace Texas Crim. Rep., See 131 Am. St. notes.
Ex Parte, Otis Davis. April 23,
No. 5378. Decided 1919. —Delinquent Child—Procedure—Appeal—HabeasCorpus.
1. delinquent relator convicted as a child for theft Where information, Court, sitting complaint County Court, as a Juvenile court, remedy appeal Following to this under the statute. an Rep., 394, parte Pritt, 82 Texas S. 392. Ex 200 W. . Corpus. Construed—Habeas Court—Statutes —Same—Rule Stated—Juvenile County P„ provided District 1198 C. Under Article C. jurisdiction delinquent children, these convenience and for Courts convicting Court, judgment and where the Juvenile are courts called County confining delinquent the State same to Court and child such regular Training School, form, be col- the same cannot inwas Juvenile laterally appeal. corpus proceeding, remedy is but in a habeas attacked County Court. Practice Construed—Procedure . 3.—Same—Statutes together exclusive, hut must be construed C. P. is 1206 C. Article procedure amended, what as to C. C. P. as Articles 1195 be with must followed. County. Gonzales From (cid:127) asking from arrest as release proceeding corpus Original habeas sentencing County Court, judgment of under a delinquent child period of Training School, for a Juvenile to the State relator year. case. opinion states the Atkinson, for relator.
W. M. *10 respondent. for Davis, Duncan
B. Ex Attorney General, the State. Berry, Assistant E. A. Patterson, 42 435; parte Ex Lambert, 37 Texas Crim. parte id., 482. parte Japan, Ex id.,