Pate v. State

• Decision Date: 12 April 1922
• Docket Number: (No. 6889.)
• Citation: 239 S.W. 967
• Parties: PATE v. STATE.
• Court: Texas Court of Criminal Appeals

239 S.W. 967

PATE v. STATE.

(No. 6889.)

Court of Criminal Appeals of Texas.

April 12, 1922.

Appeal from District Court, Hunt County; Geo. B. Hall, Judge.

Virgil Pate was convicted of robbery, and appeals. Reversed and remanded.

Evans & McCoy, of Greenville, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Hunt county of the offense of robbery, and his punishment fixed at five years in the penitentiary.

Appellant's principal complaint is of the insufficiency of the evidence to corroborate an accomplice witness named Rogers who was a confessed participant in the alleged robbery charged. We have carefully examined the record. It was claimed by the state that on the date alleged two negroes named Cozine and Hampton were assaulted by three young men at about 9:30 o'clock at night near a certain overhead bridge in Greenville, Tex., and robbed of certain money and other articles alleged to be in part the property of one of said injured parties and in part the property of the other. The alleged accomplice testified that the robbery was committed by appellant, who, at the point of a pistol, compelled him and one Dollar to take from the two negroes their property. All three of the parties had been indicted by the grand jury for the alleged offense, and the negroes contradict Rogers in any claim that he and Dollar were coerced or ordered by the third party, and they testified that they were robbed by three white men on the occasion in question.

For the purpose of determining whether there be any evidence in the record tending to connect the appellant with the commission of the offense, save that of the accomplice witness mentioned, we pursue the well-known method of considering the other evidence and excluding from our consideration the evidence of the accomplice, in order to decide the question presented. The two negroes who were robbed testified substantially the same, and to the effect that they were held up on the occasion in question by three men, one of whom held a pistol on them, and the other two of whom went through their clothes and took from them substantially the property described in the indictment. Each of said witnesses stated that he could not identify appellant as one of the robbers. Each had been carried to the jail soon after the appellant was arrested, and testified on the trial that they could not then identify him. Mr. Baer swore that he saw three young men together on the afternoon preceding the night of the robbery at the West End Garage. Rogers and Dollar were two of said young men, but witness declined to identify appellant as the third. From the West End Garage this witness said he went with the boys over to the Katy Depot. He does not disclose what boys he went with from said garage to said depot. Mr. Nix, sheriff, said he arrested appellant at Alba a week or 10 days after the robbery. Mr. Cecil, constable, swore that the afternoon preceding the night of the robbery he saw—

"that man sitting there, and the cross-eyed man, one I have learned since was named Dollar, and Baer. I saw them together at the West End Garage, and later they walked over to the Katy Depot."

Mr. Fowler said he saw three boys on the night of the robbery near Mr. Kimberlin's house, but they ran, and he could not identify any of them.

This is the substance of the state's testimony aside from that of the accomplice. None of the property of the injured parties was traced to appellant. No witness seems to have even placed him in the city of Greenville on said occasion, unless we are to infer from the statement of Mr. Cecil that "that man" meant appellant herein, in which case Mr. Cecil would be in the attitude of testifying that he saw appellant in Greenville on the afternoon of the alleged robbery that night. We are unable to give our assent to the incarceration of a citizen of this state in the penitentiary upon corroborative evidence of no greater...