Grant v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: Ramsey
• Citation: Grant v. State, 132 S.W. 350, 60 Tex.Crim. 358 (Tex. Crim. App. 1910)
• Decision Date: 23 November 1910
• Parties: GRANT v. STATE.

132 S.W. 350

GRANT v. STATE.

Court of Criminal Appeals of Texas.

November 23, 1910.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Sam Grant was convicted of murder, and he appeals. Reversed and remanded.

J. R. Stubblefield, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

On January 17th of this year appellant was indicted by the grand jury of Eastland county charged with the murder of one Oats. The case came to trial soon thereafter, and on the 10th day of February following, on a verdict finding him guilty of murder in the first degree and assessing his punishment at death, judgment was accordingly entered in the trial court.

The appeal was duly perfected, and the case comes to this court for revision on 49 different assignments of error, many of which were elaborately briefed by counsel for appellant. Some of these questions, which occupy much space in the record, relate to the action of the court taken in respect to the special venire, its service, qualification, and similar matters, but in view of the fact that the case will be reversed upon other grounds, and since these matters are not at all likely to occur on another trial, it seems unnecessary to take time to review them.

1. Many other questions relate to the admission of evidence which we have examined, and an inspection of the record has not constrained us to believe that any of them are well taken. We think, however, the charge of the court in at least one respect is under the settled rules of this state erroneous, and for this error the judgment of conviction must be set aside. The witness Bert Carter who was, under all the testimony, an accomplice, testified that on the morning of the 17th day of February, 1909, he was at the home of appellant, where he saw an old man whose name was shown to be Oats, who left appellant's home on that day going south on the public road in the direction of what is known as the Okra schoolhouse; that they followed him until he went into the home of one Clevy Cozort, where he stopped for the night; that he and appellant had followed him because they thought he was a detective, and that after leaving him at Cozort's house, and after they had started home, they agreed to follow him the next day and kill him for his money, and that, in pursuance of this agreement, they did on the following day, February 18, 1909, follow him, and when near the Okra schoolhouse in Eastland county they intercepted him, and that appellant shot him and took from his person $18.35 in money, which they divided; that only one shot was fired, and this by appellant. The testimony of Carter was savagely assailed. It was shown that he had been charged with offenses involving moral turpitude, and that he had turned state's evidence under agreement of immunity. A singular circumstance also was shown in that the body of Oats seems to have been struck by bullets in the face, and also almost squarely in the back, which it would seem would have been impossible if only one shot was fired. A number of parties saw Carter and appellant together the evening before the killing, and corroborated Carter in respect to a number of happenings which transpired on that day. There was some corroboration of Carter's testimony showing appellant with Carter on the day of the killing, and not far from the scene of the homicide, armed with a gun, and stalking through the country. This was not so direct, however, as that the jury necessarily would have connected him with the transaction.

In this state of the record the court, among other things, charged the jury as follows: "I charge you that the witness Bert Carter is an accomplice. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. You are instructed that you cannot find the defendant guilty upon the said Bert Carter's testimony unless you first believe that the testimony of said Bert Carter is true, and that it shows, or tends to show, that the defendant is guilty as charged in the indictment, and unless you further believe that there is other evidence in the case, outside the testimony of the said Bert Carter, tending to connect the defendant with the commission of the offense charged." Almost this precise charge has been many times condemned by this court. It was excepted to, and its accuracy questioned in motion for new trial for the following reasons, among others: "Said charge of the court was erroneous for the further reason that it authorized the conviction of the defendant upon the testimony of an accomplice, if the said testimony of such accomplice tended to show that the defendant commited the offense charged, provided the said accomplice was corroborated by other evidence tending to connect the defendant with the commission of the said offense, whereas under the law the evidence must go further, and show, beyond a reasonable doubt that the defendant is guilty of the charge, contained in the indictment." So that there can be no doubt that the matter is so presented, if appellant's contention is correct, as to be made here available as ground of reversal. The authorities holding this charge erroneous are unbroken in this state since the case of Bell v. State, 39 Tex....