Durham v. State

• Decision Date: 02 February 1927
• Docket Number: (No. 10512.)
• Citation: 290 S.W. 1092
• Parties: DURHAM v. STATE.
• Court: Texas Court of Criminal Appeals

290 S.W. 1092

DURHAM v. STATE.

(No. 10512.)

Court of Criminal Appeals of Texas.

February 2, 1927.

Appeal from District Court, Jones County; Bruce W. Bryant, Judge.

W. H. Durham was convicted of possessing intoxicating liquor for purpose of sale, and he appeals. Reversed and remanded.

Murchison & Davis, of Haskell, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in the penitentiary

Only two witnesses testified, Johnson, the officer who arrested appellant, and Smith, an admitted accomplice. The point is made that the accomplice witness was not sufficiently corroborated to permit the conviction to stand, in view of article 718 of our Code of Criminal Procedure (1925 Rev.), which positively denies a conviction "upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed," and which further provides that "the corroboration is not sufficient if it merely shows the commission of the offense," but it must tend to connect accused with its commission.

The test as to the sufficiency of the corroboration, long recognized as correct by our court, is to eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witnesses with the view to ascertain if there be inculpatory evidence; that is, evidence of incriminating character which tends to connect the defendant with the commission of the offense; if there is, the corroboration is sufficient, otherwise, not. Welden v. State, 10 Tex. App. 400; Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580; Jones v. State, 59 Tex. Cr. R. 559, 129 S. W. 1118. Applying this test to the present case, we look first to the evidence of Johnson, remembering that the charge sought to be proved against accused was that he was in possession of intoxicating liquor for the purpose of selling it. Johnson testified as follows:

"I am city marshal at Hamlin. * * * I know the defendant. * * * I arrested him in the town of Hamlin on or about the 17th day of December, 1925. I arrested somebody in company with him, Chester Smith. They were in a Chevrolet touring car. As to whether I saw the defendant in that car, he started to get in the car, his foot was in, partly, he was pulling up to get in the car. His foot was on the running board. I didn't know at that time whose car it was. I afterwards found out it was Mr. Smith's car. Chester Smith was in the car. * * * Prior to the time I arrested him, I saw some whisky in the car; I believe there was 17 quarts of it. * * * I saw about a half a quart of liquor laying on the back seat and one empty jar, and there was two fruit jar cases setting between the seats."

This is all the testimony aside from that of the accomplice. If the officer had seen appellant in the car prior to that time he does not say so. Whether appellant lived in Hamlin or elsewhere does not appear from his evidence. If appellant did anything in, about, or in connection with the car or its contents which was observed by the officer, it was not related. All the information his evidence gave the jury was that Smith was in his own car, which contained 17 quarts...