Vails v. State

• Decision Date: 18 May 1910
• Citation: 128 S.W. 1117
• Parties: VAILS v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 1117

VAILS v. STATE.

Court of Criminal Appeals of Texas.

May 18, 1910.

Appeal from District Court, Hopkins County; R. L. Porter, Judge.

John Vails was convicted of being an accomplice to an assault with intent to murder, and he appeals. Reversed and remanded.

Victor C. Phillips and Templeton, Craddock, Crosby & Dinsmore, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

McCORD, J.

Appellant was indicted, tried, and convicted in the court below of being an accomplice to an assault with intent to murder, and his punishment assessed at confinement in the penitentiary for eight years. In the county of Hopkins on Saturday night October 16, 1909, and at about 9 o'clock at night while H. T. Jones was sitting in his house reading a newspaper, some one approached the window and fired upon him, wounding him in his face, breast, and arms. The next morning one John Helms and Mrs. Bessie Jones, the wife of the injured party, were arrested for the shooting. John Helms pleaded guilty and was sent to the penitentiary for 13 years. Mrs. Bessie Jones was tried, convicted, and sent for 11 years. The appellant, Vails, was placed upon trial as an accomplice, and the said John Helms and Mrs. Bessie Jones were used as state's witnesses. The appellant seeks reversal on the ground of errors committed by the court below in its charge to the jury, and because of the insufficiency of the testimony in that the said Mrs. Bessie Jones and the witness Helms were not sufficiently corroborated.

It is earnestly insisted that it was error for the court to have directed the jury that if they found the witnesses Bessie Jones and Helms were accomplices, or if they had a reasonable doubt thereof, then, before they could convict, their testimony must be corroborated. The contention here made is that the judge should have directed the jury in terms that they were accomplices, and that a conviction could not be had unless corroborated. Counsel have cited us to two authorities that seem to hold that it is the proper practice to so charge the jury. One is the case of Sessions v. State, 37 Tex. Cr. R. 58, 38 S. W. 605, and the other is Armstrong v. State, 33 Tex. Cr. R. 417, 26 S. W. 829. Both of these opinions were rendered by Judge Hurt, and both cases were reversed upon other grounds. The statement was made by Judge Hurt in the Sessions Case that the proof shows beyond question that the witness Ferguson was an accomplice, and the court should have instructed the jury to that effect. In the Armstrong Case Judge Hurt says: "That Alexander was an accomplice is evident; that Waites was an accomplice in law is beyond any sort of question. This being the case, why should the court submit this issue to the jury? Why not tell the jury that they were accomplices? Why go to the trouble of defining what constitutes an accomplice? If there be an issue raised by the evidence whether a witness be an accomplice or not, in such a case the court should leave the issue to be decided by the jury under proper instructions." But, as before stated, neither one of these cases was reversed because of the failure of the court to so instruct the jury, and we do not believe that a well-considered case can be found where this court has reversed the case because of the failure of the court to instruct the jury that certain witnesses are accomplices. In the Zollicoffer Case, 16 Tex. App. 317, this court, speaking through Judge Willson, says: "It is insisted by appellant that the court erred in submitting to the jury the question as to whether or not the witness Green was an accomplice; that the court should have directly charged the jury that he was an accomplice, the evidence being so conclusive of that fact. Whilst it would not, under some facts, be improper for the court in its charge to assume and to instruct the jury that a witness is an accomplice, still we do not think it is error to submit the question to the jury. It has been the practice in such cases to submit this issue to the jury, and, believing the practice to be a safe and proper one, and in harmony with the spirit of our system of procedure, we are not disposed to change it." The doctrine laid down in the Zollicoffer Case was approved in the case of Elizando v. State, 31 Tex. Cr. R. 242, 20 S. W. 560. In the case of White v. State, reported in 30 Tex. Cr. R. 652, 18 S. W. 462, this court, speaking through Judge White, says: "The charge is objected to because it did not instruct the jury in so many words that the witness Powell was an accomplice. The charge submitted this question to the jury. * * * The court did not err in submitting this question to the jury for their determination." This rule seems to have been followed by this court in the cases of Hamilton v. State, 41 Tex. Cr. R. 190, 53 S. W. 113; Moore v. State, 47 Tex. Cr. R. 410, 83 S. W. 1117; Davis v. State, 55 Tex. Cr. R. 495, 117 S. W. 159. We therefore hold that it is not reversible error for the court to submit the question as to whether the witness is an accomplice to the jury to be found by them as a fact. We are not to be understood as holding that in a proper case the court ought not to direct the jury that the witnesses were accomplices, and it would be the better practice so to charge when there is no conflict or question.

The charge of the court is also objected to in that the court in applying the law to the evidence instructed them that if the defendant promised any reward or favor to the said John Helms to kill and murder the said Jones and was not present at the time, etc., in that the court should have directed them to the effect that they must believe beyond a reasonable doubt that the defendant promised a reward or favor to the said John Helms, with his malice aforethought, to kill and murder the said Jones, etc. The charge was as follows: "If, therefore, you believe from the evidence beyond a reasonable doubt that John Helms, in Hopkins county, Texas, on or about the 16th day of October, 1909, with his malice aforethought, made an assault, with a deadly weapon, in and upon the person of H. T. Jones, with the specific intent then and there on the part of him, the said John Helms, to kill and murder the said H. T. Jones; and if you further believe from the evidence beyond a reasonable doubt that the defendant, before the commission of said assault, if you find it was committed, to wit, on or about the 12th day of October, 1909, did unlawfully and willfully and of his malice aforethought advise, or encourage the said John Helms to kill and murder the said H. T. Jones; or if you believe from the evidence beyond a reasonable doubt that the defendant promised any reward or favor to the said John Helms to kill and murder the said H. T. Jones; and if you further believe that the said John Vails was not present at the time said assault was committed by the said John Helms, if you find that it was so committed—then you will find the defendant guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for any period of time not less than 2 nor more than 15 years, as the jury may determine. But if you believe that before the commission of said assault, if any, the defendant did not advise, encourage, or promise any reward or favor to the said John Helms to kill and murder the said H. T. Jones, or if you have a reasonable doubt as to either of these issues, you will acquit the defendant." Now, an inspection of this charge shows that the court in submitting the issue to the jury stated "did unlawfully and willfully and of his malice aforethought advise or encourage the said John Helms to kill and murder the said H. T. Jones." The error complained of is that the court did not direct the jury that the promise of the reward must have been with malice aforethought to kill and murder, leaving out the phrase "malice aforethought." We think this objection is not well taken. The court had already defined "malice aforethought." He had directed the jury that there could be no murder without malice. He had stated that if Helms had...