Perkins v. State, 42566

• Decision Date: 25 February 1970
• Docket Number: No. 42566,42566
• Parties: R. C. PERKINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 855

450 S.W.2d 855

R. C. PERKINS, Appellant, v. The STATE of Texas, Appellee.

No. 42566.

Court of Criminal Appeals of Texas.

Feb. 25, 1970.

Spruiell, Lowry, Potter, Lasater & Guinn, by Clarence V. Bray, Tyler, court-appointed, for appellant.

Hunter B. Brush, Dist. Atty., and Rex Kirby, Asst. Dist. Atty., Tyler, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for theft of a cash register over the value of $50.00; the punishment, six years.

Appellant contends that the evidence is insufficient to support the conviction, because the witness Henry Bayonne was an accomplice witness as a matter of law, and his testimony was not corroborated.

In substance the testimony of Henry Bayonne is set out below. He testified that he was in the Rose Room Cafe in Tyler at approximately one o'clock on a Sunday morning when he was requested, but refused, to take appellant home. Later at the request of J. T. Tilley, Bayonne agreed to take appellant home. On the way Bayonne noticed that Tilley's pickup truck, in which they were riding, was almost out of gas, and at appellant's request, he drove into a service station. He did not see the service station attendant. After a while he dozed off to sleep, because he had been drinking, and he had not slept Friday night and had not gone to bed that night. He was awakened by appellant who told him to drive to the side of the station. He did so because he thought appellant wanted to use the restroom. Appellant then went to the front of the station and looked up and down the street, and Bayonne dozed off again. He was awakened when appellant threw what he thought was an adding machine on the seat of the pickup. He asked appellant to take it back, and appellant asked Bayonne to leave. During their conversation, Bayonne got excited and drove to the home of appellant's mother. There appellant gave him $2.00 or $2.50 for gasoline and told him not to say anything.

Bayonne then returned to the Rose Room Cafe and told Tilley and his wife what had happened. Tilley called the service station and police. Bayonne talked to Officer Beddingfield of the Tyler Police Department and showed him where he had taken appellant.

Henry Partain testified that appellant came to the service station between 2:30 and 3:00 o'clock on Sunday morning and asked for change to buy cigarettes. Partain unlocked the electric cash register and gave appellant the change. Appellant then got the cigarettes and walked out the door. Partain went to the wash rack and returned to the office within a 'half minute' and found that a wire had been cut and the cash register was missing. Partain testified that he did not see anyone else...