McGary v. State , 99 Tex. Crim. 142 ( 1925 )

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of five years.

The premises of the Magnolia Petroleum Company at Waco, Texas, were burglarized on the night of the 23rd of March. Appellant was arrested on the 25th of March in Georgetown, Williamson County, Texas, about 100 miles from Waco. He was in a Ford car in company with a man named Ryan. In the car was a satchel containing some alcohol, a dynamite stick, fuses, a hammer, and a saw used in sawing steel and iron.

Carl Ryan testified that he and the appellant were present at the time the burglary was committed; that appellant entered the premises of the Magnolia Petroleum Company while he (Ryan) remained on the outside; that after leaving they were chased by some officers; that the articles found in the satchel mentioned, together with the pistol in the possession of the appellant, were used in committing the burglary. Some fifty or sixty dollars were given the witness by the appellant. The witness was drunk and went to sleep on the way from Waco, and was arrested together with the appellant in Georgetown.

The court instructed the jury that Ryan was an accomplice and that they could not convict upon his testimony alone; that before convicting the appellant they must believe that Ryan's testimony was true and connected the appellant with the offense; and that there was other testimony corroborating Ryan which tended to connect the appellant with the offense; that the corroboration was not sufficient if it merely showed the commission of the offense. The charge is in substance the same as was used by the court in the case of Campbell v. State,57 Tex. Crim. 301. Under the facts in some cases, the charge, while inaccurate, has been held as not warranting a reversal. Watson v. State, 90 Tex.Crim. Rep., see page 583. Generally speaking, it has been held inadequate and inappropriate. Standfield v. State, 84 Tex.Crim. Rep.; Anderson v. State, 95 Tex.Crim. Rep., see p. 353; Walker v. State, 94 Tex.Crim. Rep..

In the present case, the testimony relied upon for corroboration is deemed inadequate. None but the accomplice testified to the appellant's presence at the time of the offense and to no other facts connecting him with it save that in company with Ryan he was seen after the offense had been committed about 100 miles distant in possession of articles, some of which might have been used in the commission of a similar offense, but bearing no intrinsic evidence of such was in the present instance. Appellant was found in possession of none of the stolen property.

The faults in the charge mentioned were called to the attention of the learned trial judge, both by specific exception and a special charge, and if the case was submitted to the jury, the charge should have been amended.

The judgment is reversed and the cause remanded.

Reversed and remanded.