Forbes v. State

• Decision Date: 24 July 1974
• Docket Number: No. 48643,48643
• Parties: John Weldon FORBES, Appellant. v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 72

513 S.W.2d 72

John Weldon FORBES, Appellant. v. The STATE of Texas, Appellee.

No. 48643.

Court of Criminal Appeals of Texas.

July 24, 1974.

Rehearing Denied Sept. 18, 1974.

Emmett Colvin, Lawrence B. Mitchell and Joe Max Hendley, Dallas, for appellant.

Henry Wade, Dist. Atty., John H. Hagler, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for being an accomplice to the offense of murder with malice. The punishment was assessed by the jury at three thousand (3,000) years. This is a companion case to Culley v. State, 505 S.W.2d 567 (Tex.Cr.App.1974).

The indictment alleged that Terry Eugene Culley shot and killed Jean Geron, and that prior to the murder the appellant advised, commanded and encouraged Culley to commit the offense.

At the outset the appellant challenges the sufficiency of the evidence to sustain his conviction as an accomplice to the murder, contending the evidence fails to corroborate the testimony of Colleen Jill Brown, an accomplice witness as a matter of law. See Article 38.14, Vernon's Ann.C.C.P.

Colleen Brown testified that in early September of 1971 the appellant and Roland Ross Thompson were planning the robbery of the deceased's wife at her residence located in Dallas. According to the scheme, the witness and Culley were to pose as police officers and, after gaining entry into the house, rob the deceased's wife of her jewels. In the furtherance of the clandestine plan, the appellant furnished the pair with police badges and acquired two pistols. The witness further testified that the appellant carefully instructed the twosome on how the offense was to be committed.

Brown's testimony further reflects that at approximately noon on September 24, 1971, the appellant told her and Culley he had telephoned the deceased's office and had been informed by the secretary that the deceased was "expected back any minute." Immediately thereafter, the appellant instructed Brown and Culley to commit the robbery and rendezvous at a nearby Sears' parking lot after they left the residence.

At approximately 1:00 p.m. on the same day she revealed that she and Culley arrived at the Geron residence and rang the front doorbell, which was answered by the deceased's wife. She related that, even though they identified themselves as police officers, the deceased's wife attempted to close the front door and they forced their way into the house and chased Mrs. Geron into a back bedroom where the deceased, Jean Geron was located. During the melee, Geron seized the witness' pistol from her possession and was shot by Culley, causing severe hemorrhaging which resulted in his death. Brown testified that Culley fled the scene and she was arrested there in deceased's home.

State's witness Thomas Chris Thomas testified that on September 23, 1971, the appellant purchased a .357 Magnum revolver and a .38 caliber pistol from him. Consideration for the purchase was $100.00 which appellant did not have but he asked the witness to hold as collateral a diamond ring "until he could get the money." After Thomas examined and identified both pistols as the weapons sold to the appellant, the witness further testified that the appellant telephoned him on September 25, 1971, and stated that "It would probably be several days before he would have the money." Later on September 28, 1971, the appellant again called Thomas, stating that he could keep the ring "instead of the money."

The State's evidence further reflects that on September 23, 1971, Marke Burke, a pawnshop employee, sold the appellant six rounds of Remington .357 Magnum ammunition which was of the same type shown to the witness during the trial.

It was shown by the testimony of police officers that after a conversation with Culley a search of the shrubbery adjacent to the Sears' parking lot near the home of the deceased revealed a .357 Magnum revolver which was shown to be the murder weapon by ballistics test. This revolver was identified by Thomas as the one sold to the appellant.

Evelyn Harris, manager of the Plaid Door Club in Dallas on the date of the offense, testified that appellant and Culley were together at the club about 3:00 p.m. on that date, approximately two hours after the shooting; and that when she saw the appellant in the club three days later on September 27, 1971 she commented on the fact that Culley had gotten into trouble. Appellant then asked her to remain silent about the fact he had been with Culley on the previous date as he "didn't want to get involved."

There were other State witnesses but their testimony is not relevant to the contention presented.

The appellant did not testify or offer evidence in his behalf.

The court charged that Colleen Brown was an accomplice witness as a matter of law and that her testimony had to be corroborated.

Turning to appellant, we observe that in Edwards v. State, 427 S.W.2d 629, 632, (Tex.Cr.App.1968) this Court wrote:

"The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of 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 such evidence, the corroboration is sufficient; otherwise, it is not." (cases cited omitted.)

See also Odom v. State, 438 S.W.2d 912 (Tex.Cr.App.1969); Minton v. State, 468 S.W.2d 426 (Tex.Cr.App.1971); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); Windham v. State, 479 S.W.2d 319 (Tex.Cr.App.1972); Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972).

In Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422 (1927), this Court said:

"The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be 'other evidence tending to connect the defendant with offense committed.' * * * Circumstances proved by credible witnesses may be as potent as direct testimony in tending to connect the accused with the commission of the offense. The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration. It is the combined and cumulative weight of the evidence furnished by non-accomplice witnesses which supply the test. If by this rule it appears on appeal that before the jury there was proof confirming the testimony of the accomplice to material facts tending to connect the accused with the commission of the offense, the law is satisfied."

And in determining the sufficiency of the corroboration of an accomplice witness' testimony each case must be considered on its own facts. O'Donald v. State, 492 S.W.2d 584 (Tex.Cr.App.1973); Cherb v. State, supra.

The corroborating testimony in the instant case reflects that on the day prior to the killing appellant purchased the weapon with which the fatal shot was fired and also acquired six rounds of .357 Magnum ammunition on that same date, and further reflects that he was in company with the principal Culley within two hours of the killing, later asking a witness to remain silent about the fact she had seen him with Culley on the date in question.

It should be borne in mind that the State need not corroborate its accomplice witness upon all of his or her testimony, for the requirement of the law goes no further than to demand that there be testimony other than that of the accomplice witness which in and of itself tends to connect the accused with the crime alleged. See Edwards v. State, supra, 427 S.W.2d at p. 633; White v. State, 129 Tex.Cr.R. 59, 84 S.W.2d 465 (1935).

We conclude the evidence was ample to corroborate the testimony of the accomplice witness Colleen Brown.

Appellant additionally challenges the sufficiency of the evidence because of a claimed fatal variance between the allegations of the indictment and the proof adduced.

Appellant contends the indictment alleged appellant had unlawfully and wilfully encouraged Terry Culley to, with malice aforethought, kill Jean Geron, and that if the evidence established anything it was that appellant encouraged Culley to commit a robbery.

At the outset it should be noted that when a person instigates another to commit a crime, or agrees with another to commit a crime, it is not necessary that the precise offense which he may have advised, or to the execution of which he may have given encouragement or promised assistance, should be committed. The instigator is an accomplice to the crime actually committed by the principal when such was a forseeable and probable result of the instigation. See and compare Isaacs v. State, 36 Tex.Cr.R. 505, 38 S.W. 40 (1896); Blain v. State, 30 Tex.App. 702, 18 S.W. 862 (1892); Everett v. State, 153 Tex.Cr.R. 79, 216 S.W.2d 281 (1949); Kirby v. State, 23 Tex.App. 13, 5 S.W. 165, 173 (1887); Ward v. State, 133 Tex.Cr.R. 110, 109 S.W.2d 207 (1937).

The record clearly establishes appellant's complicity to the instant offense in furnishing Culley with the murder weapon and ammunition to be used in the robbery. The fact that the indictment did not allege appellant's complicity in the robbery during the attempted commission of which the deceased was killed is not controlling. See Becks v. State, 158 Tex.Cr.R. 204, 254 S.W.2d 396 (1953); Hodges v. State, 160 Tex.Cr.R. 579, 272 S.W.2d 902 (1954); Isaacs v. State, supra.

Appellant's second ground of error is overruled.

Appellant next contends that his motion to quash the indictment should have been granted since the indictment was obtained solely from hearsay testimony of the assistant district attorney.

This same contention was raised and adversely decided against the principal Culley in his appeal to this Court. See Culley v....