Standfield v. State , 84 Tex. Crim. 437 ( 1919 )

This case is before us on appellant's motion for rehearing.

Complaint is made that in the former opinion of this court a most serious contention of appellant was not discussed or passed upon, towit: that the court's charge on accomplice testimony was erroneous in assuming that the accused was guilty if the accomplice testimony was true.

An inspection of the former opinion convinces us of the justice of the complaint. The charge objected to is as follows:

"Now if you should be satisfied from the evidence that the witnesses Alex Shinault, Alvie Tucker or Mrs. Etta Tucker or either one of them was an accomplice or if you have a reasonable doubt as to whether they or either one of them or not, as that term is defined in the foregoing instruction, then you are further instructed that you can not find the defendant guilty upon their testimony unless you are satisfied beyond a reasonable doubt, that the testimony of said witness or witnesses is true, and you are further satisfied by other evidence, beyond a reasonable doubt, that the said testimony of said witness or witnesses have been corroborated by other evidence tending to establish beyond a reasonable doubt, that defendant did commit the offense as charged."

It will be seen that this charge authorized a conviction of appellant if the jury believed the testimony of these three named witnesses to be true, and that there is other evidence tending to establish that appellant committed the offense.

This is not the law. Not only must the jury believe the accomplice testimony to be true, and that it is corroborated, but it and the other testimony must make out the case beyond a reasonable doubt, and the jury should be so told directly and pertinently. Stripped of verbiage and stated positively instead of in the negative, this charge instructs the jury that if they believe the accomplice testimony is true, and that there is other evidence corroborating it which tends to establish appellant's guilt, they could convict. This might be true, in fact, in some cases and not true in others, and it is not the correct announcement of a legal principle. It is a direct charge on the weight of the evidence, and assumes that if the testimony of these witnesses be found true, it would justify a conviction, provided there be corroborating evidence. As stated, it might and it might not justify such conviction, this being for the jury and not for the court. A charge almost exactly similar to this was condemned in Grant v. State, 60 Tex.Crim. Rep., 132 S.W. Rep., 350.

A charge on accomplice testimony to be sufficient ought to, first: define what is an accomplice; second, give substantially the statutory inhibition against conviction on accomplice testimony without being corroborated; third, tell the jury in substance that the corroborating evidence to be sufficient must be as to some material matter, and must tend to connect the accused with the commission of the offense; and, fourth, must apply the law to the facts, and tell the jury that they can not convict on the testimony of ___, who is an accomplice (if they find him to be an accomplice), unless they believe from the testimony of said accomplice, taken with all the other testimony in the case, beyond a reasonable doubt, that the accused is guilty as charged, and unless they further find and believe there is other evidence than that of the accomplice as to some material matter which corroborates said accomplice, and tends to connect the accused with the commission of the offense.

There are many approved charges on this subject in the books which we commend to the trial judges.

It was contended by the State on this rehearing that the exception to this paragraph of the court's charge is not specific enough, and that it did not point out the error complained of. Let us see. Appellant excepted to paragraph 7 of the court's charge, which is the one under consideration, as follows: "For the reason that said paragraph assumes that the testimony of Alex Shinault, Alvie Tucker and Mrs. Tucker, or some of them, make out a case of theft against the defendant." The court in said paragraph had told the jury they could not convict on the testimony of these same people, "unless you are satisfied beyond a reasonable doubt that such testimony is true." Appellant might have used different words in his exception, and might have said he excepted to paragraph 7 of the court's charge because the same stated, substantially, that if the jury believed the testimony of Alvie Tucker, Mrs. Tucker and Alex Shinault was true they should convict; but we fail to see any appreciable difference between his statement that said charge assumed that their testimony made out a case, and the instruction if their testimony was true appellant might be convicted thereon. We think the two statements substantially the same, and the exception is sufficient.

The motion for rehearing is granted, and the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.