McElroy v. State , 53 Tex. Crim. 57 ( 1908 )

I am fully pursuaded the motion for rehearing should be granted, the affirmance set aside, and the judgment reversed. There is no fact in the record which shows or tends to show that appellant was ever in possession of the alleged stolen horse except the evidence of the witness Dunn, who, in substance, states that about midnight or a little thereafter, in the town of Yoakum, he assisted appellant and another party, Hoffernik, whom he denominates a "boy," in driving a horse from the street into a lot or wagon yard, where the horse was caught and the boy rode it away. This witness further states that appellant claimed ownership of the animal at the time, and that he, the witness, thought the horse belonged to appellant. Dunn stated that they had been drinking in the different saloons about the town to within a few moments of the time they drove the horse from the street into the lot, and that appellant was drunk. That as Hoffernik rode away Dunn swears he agreed to pilot appellant to the edge of the town where they met the boy, who had ridden the horse and for which appellant agreed to pay him, the witness, $1.50. That when they reached the designated point, the boy was in waiting, still in possession of the horse that they had taken as well as of another horse. That at that point appellant paid him $1.50 and the boy gave him $1 and a bottle of alcohol or a part of a bottle of alcohol. He separated from appellant and Hoffernik at this point and returned to town. Excluding Dunn's evidence from this record, there is not a word or fact to show that appellant was either in Yoakum or had any connection whatever with the horse. Later a horse was found in possession of a Mexican named Morena. The horse's mane had been cut away as well as the hair from the tail. The horse was in a disfigured condition when found in possession of the Mexican. The Mexican accounted for his possession of the horse by giving the name of the party from whom he says he purchased it. This party, however, was in no way connected with appellant, nor was there any attempt to connect him with appellant. Nor does the evidence show or tend to show that appellant ever saw the party or the Mexican. Dunn was shown the horse said to have been taken from the Mexican, after he was taken, and testified that he looked like the horse that he assisted appellant in taking in Yoakum. Dunn further stated positively that he did not know who the horse belonged to and had never seen the horse before. In the opinion of the writer this evidence is not sufficient, first: because the testimony does not sufficiently identify the horse Dunn says was taken as the property of the alleged owner Burkett, even if Dunn should not be regarded as an accomplice. Second, because Dunn is an accomplice, and is in no way corroborated by a single fact or circumstance contained in the record. The State did not even undertake to prove by anybody except Dunn that appellant was in Yoakum or took the horse, or was in any way connected with the transaction. Therefore, from this standpoint Dunn must be treated as an accomplice, and the court should have so charged the jury, and whether it was error or not for the court to fail to so charge, yet, under our decisions, this witness is to be treated and held to be an accomplice. The court submitted as an issue of fact in his charge to the jury, to be found by them, whether Dunn was or was not an accomplice. As before stated, the court should have charged the jury that Dunn should be regarded as an accomplice by them, and that they must find his testimony, first, to be true, and second, sufficiently corroborated, to connect defendant with the crime committed. It is a rule in Texas well settled and thoroughly adjudicated by our decisions, that if a witness implicates himself in the transaction, he is to be regarded as an accomplice. See Irvin v. State, 1 Texas Crim. App. 301; Kelly v. State, 1 Texas Crim. App. 628; Hasselmeyer v. State, 1 Texas Crim. App. 690; Florez v. State, 11 Texas Crim. App. 102; Phillips v. State, 17 Texas Crim. App. 169; May v. State, 22 Texas Crim. App. 595; Blakely v. State, 24 Texas Crim. App. 616; Conde v. State, 33 Tex.Crim. Rep.; Puryear v. State, 28 Texas Crim. App. 73. In the Puryear case, supra, the question was before the court, and seems to have been the turning point in the disposition of the case. The accused in that case was tried for killing an infant. When the mother gave birth to the child, the State's theory was that appellant killed it either by drowning or burning. The mother testified, among other things, that she begged the accused not to destroy the life of the child, and her testimony was as cogent, if not more so, in eliminating herself as an accomplice, than is the testimony of the witness Dunn in this case. The court, however, held her to be an accomplice, and required corroboration. I deem it unnecessary to go into a discussion of the cases cited, but simply state they are in line with the Puryear case, supra, and sustain it. If these cases are correct, and they have been followed without deviation and never questioned, the witness Dunn is an accomplice. It will not be questioned for one moment that if Dunn was upon trial, under the testimony given by him, any honest jury would promptly have convicted him for theft of the horse, and this court would have as promptly affirmed it on the facts.

For the reasons indicated, I do not feel justified in agreeing to an affirmance of this judgment, for the testimony clearly shows Dunn to be an accomplice, even if it be conceded that the horse about which he testified was the horse alleged to have been stolen, and was the property of Burkett as alleged, and this is more than doubtful. I therefore dissent from this affirmance.