Warren v. State

• Decision Date: 09 November 1910
• Citation: 132 S.W. 136
• Parties: WARREN v. STATE.
• Court: Texas Court of Criminal Appeals

132 S.W. 136

WARREN v. STATE.

Court of Criminal Appeals of Texas.

November 9, 1910.

Rehearing Denied December 7, 1910.

Appeal from District Court, Smith County; R. W. Simpson, Judge.

Alex Warren was convicted of crime, and appeals. Affirmed.

Gentry & Castle, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

RAMSEY, J.

This is the second appeal of this case. The opinion on the former appeal will be found in 57 Tex. Cr. R. 518, 123 S. W. 1115, where the substance of the facts is stated.

The sole question of any consequence in the case on this appeal relates to the failure of the court to give a special instruction to the effect, in substance, that the conviction could not be had upon the testimony of an accomplice unless corroborated by other evidence, and an instruction as to what constitutes an accomplice. It is also urged that, inasmuch as practically the only testimony in the case against appellant was that of the witnesses Ferguson, Williams, and Clayton, if they were accomplices, then, since one accomplice could not corroborate another, under the terms of our perjury statute, the court should have instructed the jury peremptorily to have returned a verdict of not guilty. If these witnesses were accomplices, or if there was any testimony raising the issue, then it must result that the case should be reversed. While appellant makes an ingenuous and plausible argument to sustain this contention, we think it unsound, and our judgment is clear that neither of the witnesses were "accomplices" in respect to the offense charged as that term is used in our Code. Article 79, Pen. Code 1895, defines an "accomplice" as follows: "An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or, who promises any reward, favor or other inducement; or threatens any injury in order to procure the commission of the offense; or, who prepares arms or aid of any kind, prior to the commission of an offense, for the purpose of assisting the principal in the execution of the same." Now, in order to be an accomplice, one must be connected in some way with the crime charged and under investigation. It is not sufficient that he may have been allied or connected with a defendant in some prior transaction, even if such transaction were a violation of the law. It is not contended or claimed in this case that either of the witnesses named above conspired, confederated, or in any way acted with appellant in the commission of the perjury which is the foundation of this prosecution and conviction. On the other hand, on the trial in which he gave the testimony forming the foundation of this case, they were hostile to him, and gave testimony directly contradictory to his own. It would appear from their testimony that they were participants in the game, months before the trial in which he denied on the stand, being at all concerned. Now the crime here charged consisted in giving false testimony deliberately and corruptly in the county court on the trial of the gaming case against him. Were these witnesses accomplices in that act? If they were, the court should have given in substance the charge requested by counsel. If they were not, then no such instruction should have been given. Our conclusion is that they were not accomplices, and that the court not only did not err in instructing the jury on this question, but that he was without authority so to do.

Nor do we think that any...