Newton v. State , 95 Tex. Crim. 261 ( 1921 )

When Scott purchased, received and paid for the liquor which he bought from appellant, the witness Clarkson was present. He disclaimed any foreknowledge that the particular transaction took place, but conceded that he had known of others like it and had himself upon occasions purchased liquor from the appellant; that while there was no mutuality between Scott and himself in the matter of either act or interest in the present transaction or any other, it was known to each of them that they were at liberty to drink the liquor purchased. There was sufficient evidence, we think, to support the inference by the jury that while there was no express agreement to that effect, there was a mutual understanding that any liquor purchased by either Scott or Clarkson, the other had the privilege of making use of it.

The word "accomplice" as used in Article 801 of the Penal Code, is not used in the technical sense but includes those who are criminally connected with the crime on trial. Irvin v. State, 1 Texas Crim. App. 303; O'Connor v. State, 28 Texas Crim. App. 288; and other cases collated in Branch's Ann. Texas Penal Code, Sec. 702. While the mere presence of Clarkson at the commission of the offense of purchasing the intoxicating liquor by Scott would not so connect him with the crime as to make him an accomplice witness (O'Connor v. State, supra.), he obviously knew the unlawful intent of Scott in purchasing the liquor and was present at the time. If, by his acts he aided Scott or by his words encouraged him to commit the act, or if he in advance agreed to the purchase of the liquor by Scott and was present when it was done, he comes within the definition of an accomplice witness, that is, he is criminally connected with the offense committed. Penal Code, Articles 75 and 78. At the date of the offense the purchase of intoxicating liquors, knowing that it was unlawfully sold, was a felony. The statute, however, has since been changed.

If the relations between Scott and Clarkson were such that the jury might have inferred that he in advance agreed to the purchase of the particular whisky in question, or that by his acts or words he encouraged Scott to purchase it, he might have been an accomplice witness. From such evidence, as was introduced of the custom by which one of these parties was at liberty to enjoy the fruits of the crime committed in the purchase of whisky by the other, consent of the particular transaction, we think, might have been inferred from the relationships and previous conduct with reference to the purchase and use of liquor by appellant and Clarkson. The mere disclaiming in their testimony of any mutuality of understanding or agreement was not conclusive. Their attitude toward one another was the subject of proof by circumstantial evidence. Scott was obviously an accomplice, he being directly connected with the crime of selling liquor in committing the crime of purchasing it. Franklin v. State, 89 Tex.Crim. Rep.. It may be conceded that Clarkson was not an accomplice to the sale, but as we understand the law as applied to an accomplice witness, this is not essential. His status was analogous to the appellant in the case of Walker v. State, 37 S.W. Rep. 423. Walker was charged with the theft of a cow. Parker, a witness for the State, on cross-examination, admitted that he had eaten of some of the beef resulting from the slaughter of the cow, knowing at the time that it was stolen meat, and he did not inform Griffin, the owner of the cow, of that fact. It was held that Parker was an accomplice. In Johnson's case, 58 Tex.Crim. Rep., the offense was burglary. The witness McCormick purchased some of the stolen property under circumstances which would justify the conclusion that it was not honestly obtained by Johnson. The court held that a charge on accomplice testimony was required, saying:

"We have found no case, in terms, directly supporting appellant's contention, and yet on principle, it seems to us clear that there was evidence before the jury from which, in the light of all the facts, they would have been justified in believing that the witness McCormick was an accomplice, and from the manner in which the property was offered for sale, in connection with the shocking disproportion between the real value of same and the amount asked therefor, might well have reached the conclusion that the property must have been stolen, and to suggest that no man in his senses, honestly owning the property, would have parted with it for so inconsiderable a sum and that his possession of same under these circumstances was not a fair and honest possession, and would well have justified the jury in believing that, knowing it had been stolen, he reaped the fruits of the theft or connived at it by being the receiver of stolen property. Whether the jury would have so believed or not, we are not called on to say. That the facts suggested such a conclusion, we have no sort of doubt."

"We attach, in this case, no controlling importance to the fact that the witness McCormick denied knowing that the property was stolen. If the facts considered altogether were such as of necessity to carry notice that the property had been stolen, he would in law, as in fact, be assumed to have that knowledge which every sane mind would gather from all the environments and circumstances of the transaction. It is idle, sometimes quite frequently, to say that we do not know a fact of which the evidence is so plain that a wayfaring man, though a fool, cannot err in respect thereto."

Judge Ramsey, in writing the opinion, and commenting upon the Walker case, said:

"In this case there is no pretense that the witness Parker participated in the original taking, but it is not questioned that he received a part of the meat of the cow in question after she had been killed, knowing at the time that the same was stolen. This would constitute him a receiver of a part of the stolen property, and would place him towards the case (where the prosecution was for the theft of the animal in question) in the attitude of an accomplice."

In the instant case, while Clarkson took no part in the sale other than his connection with the purchase, he was not under the evidence so disconnected from the purchase by Scott as to warrant the court in refusing to permit the jury to determine whether he was an accomplice witness. His testimony was essential to conviction, and we think in refusing to instruct the jury upon the law of accomplice testimony with reference to him, the court fell into error which requires a reversal of the judgment.

It is therefore ordered that the rehearing be granted, the affirmance heretofore entered be set aside and the judgment of the trial court be now reversed and the cause remanded.

Reversed and remanded.