Newborn v. State

• Citation: 292 S.W. 247
• Decision Date: 16 March 1927
• Docket Number: (No. 10234.)
• Parties: NEWBORN v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

292 S.W. 247

NEWBORN v. STATE.

(No. 10234.)

Court of Criminal Appeals of Texas.

March 16, 1927.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Frank Newborn was convicted of striking a pedestrian with his automobile and failing to stop and render aid, and he appeals. Reversed and remanded.

Howth, Adams & Hart and John T. Kitching, all of Beaumont, for appellant.

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

LATTIMORE, J.

Conviction in district court of Jefferson county for failing to stop automobile and render aid; punishment, one year and one day in the state penitentiary.

Mr. Miller was struck by an automobile and killed on October 22, 1925. Witness Day for the state testified that a Ford car containing two people and going about 40 miles an hour at Fannett and in front of the store of Mr. Quaid struck Miller about 7 o'clock p. m., breaking his legs, from the effect of which injury Mr. Miller died that night about 11 o'clock. Witness could not identify the occupants of the car or tell whether they were white or black. The car did not stop. Elmer Smith for the state swore that he and appellant were in a Ford car on the night in question; that both were drinking; the car was driven by appellant, and in front of Quaid's store in Fannett they struck a man, but did not stop; they went up the road to a point between Fannett and Cheek and then turned and went back to the town of Winnie, in or near which both of them lived; the next morning they learned that the man was dead; that evening they read in a paper an account of his death, and appellant said, "Oh! the devil with that." Shown a written statement, witness said it was made by him, and was true and correct, and contained what he meant and intended should be his testimony now given. At this point the state, over objection, introduced the written statement, signed by witness, and which was shown later to have been made by him before the assistant county attorney. On cross-examination Smith admitted that he had tried to procure witnesses who would swear that he and appellant were not in Fannett on the night in question, but were in the town of Winnie some 15 miles distant from Fannett, and that they did not leave Winnie at all.

There seems no question of the fact that Smith was an accomplice. All persons who are principals, accomplices, or accessories to a given crime who testify against the defendant seem to be universally held accomplices. Harper v. State, 92 Tex. Crim. R. 657, 245 S. W. 79. An accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. In Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, we held that one who gives false testimony in order that the offender may evade prosecution is an accomplice witness. In Harrison v. State, 69 Tex. Cr. R. 291, 153 S. W. 139, we held that one who, knowing that an offense has been committed, tries to spirit away or hires material witnesses to not appear before the grand jury, is an accessory. We have no doubt that one who procures false testimony or endeavors to procure same with the purpose of enabling another whom he knows to have committed a crime to evade arrest, prosecution, or conviction for such a crime, would be an accessory, and, if such person became a witness for the state, he would be an accomplice.

Appellant excepted to the charge of the court for not instructing the jury that Smith was an accomplice, and also presented a special charge asking that the jury be so told; which charge was refused. In our opinion the learned trial judge fell into error in failing to instruct the jury on the law of accomplice testimony.

We are not favored with a brief by the state in this case, other than a confession of error on the part of the state's attorney with this court based on the proposition that the...