28 Tex. Ct. App. 14 | Tex. App. | 1889
Appellant and one Blackshear were jointy indicted for the murder of Jay Folk. The prosecution was dismissed as to Blackshear, and he testified as a witness for the State on this, trial. Even with his testimony, if it be conceded to be true, the case as-made against appellant is one entirely of circumstantial evidence, for neither he or any other witness saw defendant shoot the deceased, and his-testimony tended to show that defendant did not shoot the deceased, because he says that after loaning defendant his gun he, defendant, left in. an opposite direction, and the gun was fired in an opposite direction to-that from which the dead body of the Chinaman was afterwards found. Defendant when he went to the field that night did not carry a gun with him. Blackshear borrowed and carried one. Independently of his own testimony, the physical appearances at the scene of the homicide, as testified to by the other witnesses, were as strong if not stronger against Blackshear than this appellant—-certainly stronger in that Blackshear went to the field with a gun, whilst defendant had none. If the killing-occurred whilst the parties were together then the preponderance of the facts are in favor of the theory that Blackshear did the killing; and in that event -defendant’s mere presence, unless he participated in or encouraged by words or acts in its perpetration by Blackshear, would not-have made him liable as a principal in the homicide. This view of the law was not submitted in the otherwise able and comprehensive charge-of the learned trial judge as given to the jury, and its omission is complained of as error in the motion for new trial filed by appellant’s counsel.
If Blackshear and appellant were not present and acting together at the time and in the commission of the crime, still the evidence is sufficient to put Blackshear in the attitude of an accomplice to the crime. If defendant alone committed the crime then his guilt can only be established by the testimony of Blackshear. Blackshear says that defendant borrowed his gun and went off to hunt for a hog which they thought they heard in the corn, and that a few moments thereafter he heard a gun shot in an opposite direction to the point where the dead Chinaman was subsequently found. Is Blackshear’s testimony that defendant borrowed his gun in any manner corroborated? Or is the fact that defendant alone did the killing in any manner corroborated by any other testimony? If so, we have failed to find it in the statement of facts submitted to us in this record.
We are further of opinion that even if it be conceded that Blackshear’s evidence be true, the testimony is insufficient to sustain and support a verdict and judgment of conviction for murder of the second degree.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.