Spears v. State , 24 Tex. Ct. App. 537 ( 1888 )

"Willson, Judge.

In instructing the jury in relation to the testimony of a State’s witness, the court used the following language: “In contemplation of our law with reference to accomplice testimony, the court charges you that John Thomas, the witness introduced by the State, is an accomplice with the defendant,” etc. This portion of the charge was excepted to by the defendant, and is presented for our revision by proper bill of exception,

It is manifest that the court erred in giving such charge. It explicitly tells the jury that the witness Thomas is an accomplice with the defendant. This was equivalent to telling the jury that the defendant was criminally connected with the offense charged against him. Thomas, in his testimony, confessed his own guilt of the offense; that he was a principal in the commission of the offense. ' Therefore, to instruct the jury that Thomas was an accomplice with the defendant, was to instruct that the defendant was equally guilty with Thomas. The instruction should have been that the witness Thomas was an accomplice in the commission of the offense charged, and that a conviction upon his testimony, unless corroborated, etc., would not be warranted. The vital issue in the case was the participancy of the defendant in the commission of the offense. The above quoted paragraph of the charge determines that issue against the defendant, indirectly but plainly, because the witness Thomas could not have been an accomplice with the defendant in the commission of the offense without the defendant’s being also particeps criminis. Because of this erroneous charge, the judgment must be reversed and the cause remanded for another trial. (Stieckey v. The State, 7 Texas Ct. App., 174; Maddox v. The State, 2 Texas Ct. App., 404; same case, 12 Texas Ct. App., 434.)

Opinion delivered January 25, 1888.

In our opinion the indictment is a good one. It is not subject to the objection of duplicity urged against it. Nor does it fail to sufficiently negative the exceptions contained in the statutory definition of the offense. Other objections made to the indictment are, we think, hypercritical and without substantial merit.

It is unnecessary that we should determine the correctness of the ruling of the court in refusing defendant’s application for a continuance. With respect to other errors assigned and insisted upon, we also deem it unnecessary that we should express an opinion. Because of the erroneous charge above specified, the judgment is reversed and the cause is remanded.

Reversed and remanded.