Wright v. State

43 Tex. 170 | Tex. | 1875

Reeves, Associate Justice.

This is an indictment against Thomas Jennings, William Wright, and Joe Hemphill for the murder of Charles Brite.

Appellant, William Wright, only was on trial, and having been found guilty of murder in the second degree by the jury, and his punishment assessed at five years’ confinement in the penitentiary, he appealed and assigned for error the overruling his motion for a new trial.

The grounds of his motion are as follows :

The verdict of the jury is contrary to the law and the evidence.

4. Because the court erred in allowing Joe Hemphill, an accomplice included in the same indictment, to testify in the cause.

5. The court erred in allowing Mary Brite, the widow of the deceased and a witness called by the State, to testify as to unfriendly feelings between the deceased and Sim Tucker and Henry Elmore, who had been indicted for the same offense in a separate indictment, and had been tried and convicted and were awaiting the sentence of the court, without in any way connecting this defendant with said quarrel and unfriendly feeling.

6. The court erred in refusing to give the jury the instructions asked by the defendant.

It appears that the district attorney entered a nolle prosequi as to the defendant, Joe Hemphill, who was jointly indicted with the appellant and with Thomas Jennings for the murder of Charles Brite, in order to make him a witness for the State in the case of The State v. Page Sims, Henry Elmore, Josiah Hemphill, Ho den Hemphill, and Sim Tucker, charged by indictment with the same offense.

An accomplice is not incompetent to testify as a witness, but a conviction cannot be had upon his testimony unless corroborated by other evidence tending to connect the accused with the offense committed. The witness having been discharged from the prosecution by dismissing the indictment against him, there was no error in allowing him to testify in the case. (Criminal Procedure, art. 3118.)

There being no evidence of a conspiracy between appellant and Elmore, Tucker, and others, and nothing connecting appellant with these parties in their quarrel with the deceased, the evidence of Mary Brite in regard to the quarrel between the other parties should not affect appellant, and his objection should have been sustained; but having been admitted in evidence, it should have been excluded when the State failed to show any connection between the parties.

The judge refused to give the instructions asked by appellant because substantially given in the general charge.

.In the general charge the court had informed the jury that the witness must be corroborated by other evidence tending to connect the defendant with the offense, and that the corroboration is not sufficient if it merely shows the commission of an offense, but that it must also be shown as to the material matter. The explanation of the terms “corroboration.” and “material matter,” as given by the judge at the request of the jury, was correct, but no good reason is seen why the instruction asked by defendant should not also have been given in aid of the explanation and meaning of the terms. .

A graver question remains to be explained, that is, does the evidence support the verdict of the jury? We think not. There is no evidence tending to connect the defendant, Wright, with the murder excepting that of the witness Joe Hemphill. This witness is not corroborated in his statements in any material matter, but is contradicted in several important portions of his testimony. The widow of the deceased and his married daughter and his son Arthur, who were acquainted with the defendant, say if the defendant was present on the night of the killing that they did not see him. And his widow said that the defendant was not implicated in the murder. The witness, Joe Hemphill, stated that Wright had on white pants, while the other witnesses testified that only one man wore white pants, and he was Page Sims. The presence of Page Sims at the house of Brite on the night he was taken away is proved by his wife and mother-in-law. Joe Hemphill is further contradicted by the other witnesses as to the manner of killing and the circumstances attending it. Ho fact was stated by any other witness showing any connection of appellant with the murder itself or its perpetrators, whoever they may have been.

We are of opinion that the court erred in overruling the motion for a new trial, and for this error the judgment is reversed and the case remanded.

Reversed and remanded.