Clay v. State

• Decision Date: 17 May 1899
• Citation: 51 S.W. 212
• Parties: CLAY v. STATE.
• Court: Texas Court of Criminal Appeals

51 S.W. 212

CLAY v. STATE.

Court of Criminal Appeals of Texas.

May 17, 1899.

Appeal from district court, Dallas county; Charles F. Clint, Judge.

John Clay was convicted of horse theft, and he appeals. Reversed.

Hudson & Woody, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of horse theft, and his punishment assessed at confinement in the penitentiary for a term of two years; and he appeals.

On the trial the witness Hugh Chamberlain was permitted to testify, over the objections of appellant: That about six weeks before appellant was arrested he came to witness, and told him that he had some stray horses out on the range that he wanted to let witness have, and asked him if he could use them, and he told appellant he could; and appellant arranged with witness to meet witness at Mesquite with the horses the following Sunday, but did not do it. That afterwards appellant came to witness, and informed witness that he did not get off with the horses as he expected, and wanted to know of witness when he was going with another bunch, and witness told him he was going that week. Thereupon appellant said he would go out and get the horses, and bring them in the next morning. Witness notified Sheriff Ben Cabell of this fact. Thereupon the witness details what he told Sheriff Cabell. Then the state, over the objections of appellant, was permitted to prove the same facts, in substance, as detailed by the witness Harry Chamberlain,— by Sheriff Cabell. Without reviewing all the facts detailed by the sheriff to the jury, we think it sufficient to say that an accomplice cannot be corroborated by proving statements that said accomplice made in the absence of the party against whom he is testifying. While it was proper to permit the witness Chamberlain to testify as to all that appellant told him about bringing in the horses, it certainly was not permissible for the witness Chamberlain to testify as to all the facts that he detailed to Sheriff Cabell. Upon the issue as to whether or not the witness Chamberlain was an accomplice, it might have been permissible for the court to admit testimony of Sheriff Cabell in those particulars wherein he testified to facts indicating that the witness Chamberlain was not an accomplice, but merely a detective; but, if the testimony was admitted for this purpose, it would be the duty of the court to instruct the jury that it was admitted for this purpose alone. We have heretofore held that, if a party is acting as a detective, he would not be guilty as an accomplice. And certainly, where the evidence tends to show a witness was an accomplice, it would not be permissible to allow the witness to corroborate himself by detailing the facts he proposed to testify to, to another witness, to wit, the sheriff, and have that witness repeat said conversation, thereby corroborating the accomplice. We notice in this connection that the court, in the eighth subdivision of the charge, instructed the jury, as follows: "In passing upon the defendant's guilt or innocence in this case, you will not consider that part of Sheriff Cabell's evidence, if any, that relates to what the witness Chamberlain may have said to him about the defendant bringing to him strays, stolen, or other stock, and what he was to do about it. Such evidence, if any, was admitted solely for the purpose of assisting you, together with all the other witnesses, if any, in passing upon the credibility of the said Chamberlain as a witness, and in weighing his evidence." It will be readily inferred from what we have heretofore said that this charge is erroneous, in that the same proposes to admit the testimony of Sheriff Cabell on the issue of the credibility of the witness Chamberlain, whereas we have uniformly held that an accomplice cannot corroborate himself in any such way. The other...