Sheppard v. State

• Decision Date: 08 November 1911
• Citation: 140 S.W. 1090
• Parties: SHEPPARD v. STATE.
• Court: Texas Court of Criminal Appeals

140 S.W. 1090

SHEPPARD v. STATE.

Court of Criminal Appeals of Texas.

November 8, 1911.

Appeal from District Court, Angelina County; James I. Perkins, Judge.

Lee Sheppard was convicted of burglary, and he appeals. Affirmed.

I. D. Fairchild and Martin Feagin, for appellant. C. E. Lane, Asst. Atty. Gen., for, the State.

HARPER, J.

Appellant was indicted, charged with burglary, by the grand jury of Angelina county. When tried he was found guilty, and his punishment assessed at three years' confinement in the penitentiary.

There is with the record what purports to be a statement of facts, but it is neither signed nor approved by the judge of the court trying the cause. A document purporting to be a statement of facts, and signed as such by the attorneys for the state and the accused, but not approved and signed by the judge, constitutes no part of the record, and in this court the case stands as though there had been no effort to make a statement of facts. This matter is fully discussed in Brooks v. State, 2 Tex. App. 1, and has been followed in an unbroken line of decisions by this court. It must be authenticated by the judge's signature. See list of authorities collated under section 1169 of White's Annotated Code of Criminal Procedure.

In his motion for a new trial appellant complains that the court erred in admitting the testimony of the witness Joe Lightfoot because said witness had plead guilty to the charge of burglary, and his punishment had been assessed by the jury at confinement in the penitentiary for a term of four years. There is no bill of exceptions reserved to the action of the court in admitting this testimony, consequently we cannot review the matter. But if a bill had been reserved, and the witness had not been sentenced at the time he was offered as a witness, he would not be disqualified.

A judgment of conviction does not disqualify a witness — the sentence must have been pronounced by the court. Jones v. State, 32 Tex. Cr. R. 135, 22 S. W. 404; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685.

Appellant also complains that the court erred in his charge in instructing the jury that the witness Joe Lightfoot was an accomplice, and that such charge was upon the weight to be given the testimony. In Sessions v. State, 37 Tex. Cr. R. 58, 38 S. W. 605, it is held that where it is apparent that a witness testifying in a case is an accomplice, the court should instruct the jury to that effect, and should not submit the question of his being an accomplice to the jury. See, also, Armstrong v. State, 33 Tex. Cr. R. 417, 26 S. W. 829; Zollicoffer v. State, 16 Tex. App. 316; Elizando v. State, 31 Tex. Cr. R. 237, 20 S. W. 560.

There being no statement of facts, we must assume that the evidence proved the witness to be an accomplice beyond controversy, and if so the court did not err in so charging the jury.

In another bill appellant complains that the court erred in that portion of his charge to the jury, wherein the jury was instructed: "All persons are principals who are guilty of acting together in the commission of the offense, and any person who advises or agrees to the commission of an...