Elizando v. State

• Decision Date: 05 November 1892
• Citation: 20 S.W. 560
• Parties: ELIZANDO v. STATE.
• Court: Texas Court of Criminal Appeals

Page 560

20 S.W. 560

ELIZANDO v. STATE.

Court of Criminal Appeals of Texas.

November 5, 1892.

Appeal from district court, Wilson county; GEORGE McCORMICK, Judge.

Nicanor Elizando was indicted for murder committed in the perpetration of robbery. He was convicted, and the verdict assessed the death penalty, from which conviction he appeals. Affirmed.

R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

Appellant was indicted for murder committed in the perpetration of robbery. Upon the trial a verdict of guilty was returned by the jury, assessing the death penalty, and from this conviction appellant prosecutes this appeal.

The record does not contain an assignment of error, nor have there been briefs filed in this court. The motion for a new trial attacks the court's charge because it fails to instruct the jury that the evidence corroborating the statement of the accomplice must tend directly and immediately to connect the defendant with the offense committed. In this connection, and upon this subject, the court gave in charge the statute. Such a charge has been held by repeated decisions of this court to be usually sufficient. Simms v. State, 8 Tex. App. 230; Jackson v. State, 4 Tex. App. 292; Avery v. State, 10 Tex. App. 199; Hoyle v. State, 4 Tex. App. 239. If the defendant had desired other charges, submitting more fully the law in this respect, he should have requested same to have been given. This was not done, nor did he reserve exceptions to the charge as given. Not only does the corroborating evidence directly connect defendant with the homicide, but, if true, it was sufficient to support the conviction, independent of the testimony of the accomplice. The charge, under the facts of this case, was not erroneous, and the court did not err in refusing the new trial for this reason.

Another ground stated in the motion for the new trial is: "The court erred in not instructing the jury that Juliana Estrado was an accomplice, whose testimony should be corroborated." The court did not err in failing to so charge the jury. In the first place, the evidence before us does not connect this witness with the offense, so as to constitute her an accomplice, and therefore does not require a charge upon that issue. The fact that she was the wife of one of the guilty participants to the homicide, and knew that a conspiracy had been entered into between her husband and defendant to commit the crime, and subsequently heard defendant's confession of guilty participancy in the deed, does not constitute her an accomplice. Smith v. State, 23 Tex. App. 357, 5 S. W. Rep. 219; Noftsinger v. State, 7 Tex. App. 301; Rucker v. State, Id. 550. A wife may be an accomplice to her husband, so as to require corroboration of her testimony; but the facts in this case do not show her to be such. But, in the next place, if it be conceded that the facts adduced raise such an issue in connection with her testimony, still it would not be incumbent on the court to charge, in affirmative terms, that she was an accomplice. It was sufficient to submit that question to the jury as a question of fact to be determined by them, which was done. In cases where that fact is not admitted, or placed beyond doubt, it is not improper to submit such question, under appropriate instructions, to the jury, to be determined by them. Zollicoffer v. State, 16 Tex. App....