Rogers v. State , 122 Tex. Crim. 331 ( 1932 )

The sufficiency of the corroborating testimony to meet the measure of the law is challenged in the motion for rehearing as it was upon the original hearing. The law declares that there must be corroborating evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. Article 718, C. C. P., 1925. This statute was in the first Code of Criminal Procedure adopted in this state, and since its adoption it has remained unchanged. Speaking of it in a recent case, the following language was used: "In the reports the word 'tend' has been defined 'to have a leaning' (Chandler v. State, 89 Tex.Crim. Rep., 232 S.W. 318); 'serve, contribute or conduce in some degree or way,' or 'have a more or less direct bearing or effect' (Boone v. State, 90 Tex.Crim. Rep.,235 S.W. 580, 584); 'to be directed as to any end, object, or purpose' (Nash v. State, 61 Tex.Crim. Rep.,134 S.W. 709); and in Webster's Dictionary, the word 'tend' is thus defined: 'To be directed or have a tendency, conscious or unconscious, to any end, object or purpose.' " Shrader v. State, 51 S.W.2d 607. See, also, Minor v. State,108 Tex. Crim. 1, 299 S.W. 422.

The requirement of the statute may be met by circumstances as well as by direct evidence. See Nash v. State, 61 Tex. Crim. 259,134 S.W. 709.

G. W. Mann, about 60 years of age, kept a small grocery store and lived near the road which leads from the town of Luling to the Bruner oil field. It was an extension of one of the streets of the city of Luling. The main street ran east and west and the Bruner oil field road ran north and south, intercepting the main street at right angle.

The witness Conley, a deputy sheriff, gave testimony as set forth in the original opinion, going to show that Mann was killed by a stab from an ice pick; that he had been robbed; that he was taken from his store partly dressed and barefooted.

Autrey, the accomplice, testified that on the night previous to the death of Mann, he overheard the making of a conspiracy by the appellant Rogers and his codefendant Cubit, the object of the conspiracy being to rob the deceased. Autrey joined the conspiracy, according to his testimony, and performed the part that was assigned to him, namely, to keep watch and warn his confederates in case of necessity. According to Autrey, Rogers and Cubit entered the store of the deceased. Shortly thereafter they, together with the deceased, came from the store. Mann called for help. His cry was heard apparently by the witness Conley, who answered the call and found Mann's store rifled and his money gone, and his body at a place in accord with the testimony of Autrey. That the conspiracy described by Autrey was made was vouched for by the witness Woodson, as shown in the original opinion. That the parties were together at the time of the conspiracy as claimed by the accomplice to have been made was likewise shown by the witness Jenkins.

The witness Gant gave testimony going to show that in passing along the road near Mann's store about the time the robbery (according to Autrey) took place, he saw two men at Mann's store. One of them was Cubit, the coconspirator of the appellant. On the trial, Gant circumstantially identified Rogers as the companion of Cubit at the time the offense was committed.

The appellant's testimony denying his association with Autrey on the night of the tragedy was controverted by the testimony of the witness Hysaw. Other witnesses, as shown in the original opinion, corroborated Autrey touching the association of Cubit and the appellant with Autrey at the time the latter claims the conspiracy to have been formed.

In his motion for rehearing, appellant's counsel adverts to certain circumstances which it is argued were calculated to render improbable the statement of Autrey. These circumstances, however, were before the jury.

Upon a review of the record and the evidence in the light of the motion for rehearing, we are constrained to the view that the testimony relied upon to corroborate the accomplice is sufficient, if believed, to comply with the requirement of the statute. Its truth, as stated above, was a matter for the jury, and their finding is binding upon this court.

The suggestion of the appellant that this court should find as a fact that the presence of the appellant at the time of the commission of the offense was shown by the record to be impossible and that the testimony of the accomplice witness was untrue, calls upon this court to go beyond its province and to invade the domain in which the jury is supreme. To determine whether there be evidence in the record is the province of the court. To determine whether the evidence is true is the province of the jury, committed to that body by the law of the land.

The motion for rehearing is overruled.

Overruled.