The opinion
ON REHEARING.
November 30, 1921.
HAWKINS, Judge.
Appellant insists that we were in error in holding the language complained of in argument, and which is set out in our opinion, was not a reference to appellant’s failure to testify. It will be noted that our announcement is based on the proposition that to come within the prohibition of the statute the language complained of must be of such a character as to necessarily be an implication upon the failure to testify, and not one as to failure to produce other evidence. In our judgment the facts brought the case within the latter realm. However, there can be no doubt that the language used is on the border line of inhibition, and upon another state of facts might be held erroneous. We say this much for the purpose of calling the attention of prosecuting officers to the exercise of more care in their selection of language when discussing a question so fraught with danger. If the purpose of the argument was to charge the defense with the failure to produce witnesses other than accused, words could have been chosen which would have borne no uncertain meaning. The matter is not further reviewed because we have reached the conclusion that the motion for rehearing must be sustained on another ground.
Upon a closer analysis of the testimony, in the light of the motion for rehearing, we believe we were in error in holding the evidence upon corroboration of an accomplice sufficient to meet the requirements of the law. The test is this. “Eliminate from the case the evidence of an accomplice, and then examine the evidence of the other witnesses with ^Ae view to ascertain if there be inculpatory evidence — evidence tending to connect the defendant with the offense. If there is, the accomplice is corroborated: if there is no inculpatory evidence, there is no
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corroboration, though the accomplice may be corroborated in regard to any number of facts sworn to by him.” (Welden v. State, 10 Texas Crim. App., 400). Beam (the accomplice), made out a complete case, but in order to apply the test his testimony will be eliminated from consideration, and the other evidence examined for the discovery, if possible, of inculpatory facts. Our comments on the evidence where the ’ght to be necessary in immediate connection .with it, will be placed in brackets in order not to confuse them with the evidence itself.
Ramey had been acquainted with appellant for about five years; had associated with him some, and had frequent conversations with him. He does not undertake to identify the party acting with Beam as appellant. He says that Beam had on a black suit of clothes, and the other party was dressed in unionalls; this third party was rather bent over, and had a white dirty r'ag over his face; in general appearance he corresponded with the weight and height of appellant; the party had an old hat pulled tight down over his ears, and he only saw him for an instant; he would not testify whether this third party was a man or woman. He did testify that within his knowledge a woman who was supposed to be Beam’s niece had come through with them in a car from Kansas, and that the two women wore unionalls; that within his knowledge this niece wore unionalls, especially when traveling. Ramey did not even undertake to say that after he was robbed the other car preceded or followed the one in which he was carried to the place where he was tied and left; but says that after he had been tied and left in the canyon he heard the noise of only one car starting on the hill. He does not undertake to describe the car in which appellant was supposed to be riding by its make, or otherwise, than it appeared to be an old car. A pistol was exhibited to Ramey during the trial; he testified that he could not say it resembled the one the unidentified person had at the time of the robbery, but as near as he could recollect he had seen the sun reflect on it, and he thought it was a silver gun, but would not say for certain whether it was a silver gun or a black one.
Mrs. Allie Barker testified that at or about the date of the robbery she saw two cars pass her place, going east; the car leading was an old looking car, but she was unable to recollect whether it was a five passenger car or not; there was just one man in this car; the other car following just behind was a new car, with three passengers in it, two men and one woman. One of the men in the new car was riding on the running board. She does not pretend to say who the parti.es were in either car; she did not know who they were, and paid ho particular attention to them; all she knew was that two cars passed, such as she had described. (Mrs. Barker’s evidence corroborated Beam as to the movements of the cars after the robbery, but does not in any way aid in connecting appellant with it. The man driving the old car could have been any one else as well as he.)
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On the day of the robbery V. C. Kersey saw appellant in the town of Goodnight riding in an Overland car, and had another man in the car with him. This was some time about the middle of the afternoon. Witness did not talk to appellant, he just stopped at the garage, got some gasoline and drove on. There was nothing unusual in the occurrence, according to the witness. (The witness does not undertake in any way to describe the man who was with appellant on this occasion, and neither does he undertake to say that it was the accomplice witness Beam.)
The witnesses Green Walker and Herman Walker testified that on the day before they learned of the robbery having occurred they were at Conway between three and five o’clock in the afternoon; they saw a car pass through Conway, going west, at a high rate of speed; they thought the driver of the car was appellant, and thought it was an Overland automobile; they would not testify positively that the party driving the car was appellant, but were under the impression that it was.
On the day of the robbery, about one o’clock in the afternoon, witness Hollman saw appellant and a man whom he did not know in a car on the street in Amarillo. He did not undertake to describe the car, except that it was a dark color. The man with appellant was a medium sized man, dark complexioned, weighing from one hundred fifty to one hundred and sixty pounds, and rather tall. Witness saw this man get out of the car, go across the street, step up on the sidewalk, remain for a little while, then turn and go back to the car, where appellant had remained. They drove off in the car in a westerly direction, stopping in front of the Amarillo hotel. Prior to this time the witness had seen a medium sized woman come out of the side door of the Elk hotel and go into the Briscoe Sales Agency place of business. Witness did not know who this woman was, but saw the man who was with appellant go across the street to the Briscoe Sales Agency and saw him go back to the car where appellant was, and then drive south. Witness says this was about one o’clock in the afternoon. (There is nothing in the record which would indicate to our minds whether this description in any way meets the description of the accomplice Beam, and nothing to indicate whether the man whom Hollman described in any way tallies with the man whom Kersey says was with appellant at the time the gasoline was purchased. Beam was before the jury, and the description may have aided them; but we have nothing in the record to aid us in appraising the value of the description.)
The testimony of the witness Gray is unsatisfactory and A little probative force. He claims that on or about the date of the robbery he remembers that appellant came to his place of business in a car, but had no recollection of who was with him; he would not be positive as to the time. He could not remember whether appellant told him where he had been. (This witness did not undertake to say what kind of car appellant was driving at the time.) He also recollects that at some
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time a woman drove into his place of business in a Briscoe car, which he thinks was a roadster, and he thinks it was about an hour and a half after the woman left before appellant left. He had no recollection of appellant taking an Overland car out of his place of business on the day of the robbery or bringing a car back. Witness disclaims that he put any overalls in a car in his place of business, but said that sometimes they threw their work overalls in the cars that were standing in there. Later on this witness says that he does not remember of any man being at his place of business with appellant on the day of the robbery; that appellant was there so frequently he may have been there, but he had no recollection of it.
Mr. Roach, sheriff, testified that on the day of the robbery appellant was working for the Texas Overland Company of Amarillo; that on the next day he went to this place of business and a gun was taken out of a car at this place, and also some unionalls, two pair. He could not identify the pistol or unionalls as being the ones found in the car, but said they resembled the ones taken out of the car. (There is no testimony of any kind in the record showing that the car out of which these things were taken had ever beer in the possession of appellant, or even that it was an Overland car. There is no testimony that appellant was driving this particular car, or had anything to do with it on the day of the alleged robbery.)
There is some testimony in the record that appellant was the agent for the Willys-Knight car, and had been trying to sell to Beam’s wife, through Ramey, one of these cars. Appellant had been seen with her on one or two occasions prior to the robbery, and was seen talking toiler in Amarillo on the day of, and prior to the robbery.
The foregoing constitutes all the salient testimony before us, outside of the evidence of Beam, the accomplice. Beam and his wife were confessedly parties to the robbery. That some other party aided them is established by Ramey; but that such party was appellant is not sufficiently shown, even though he may have been seen-in their company, and was associating with them before the robbery. Roquemore' v. State, 54 Texas Crim. Rep., 592 . The corroborating evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the accused with the commission of the offense. Hoyle v. State, 4 Texas Crim. App., 245. The purpose of the statute was to prohibit a conviction unless there was some evidence entirely outside that of the accomplice, which of itself, and without the aid. of the accomplice, tends at least to connect accused with the offense committed. We have become convinced that the evidence as it appears in the record before us falls short of meeting the tests required. No-inculpatory facts are shown which come to the aid of the accomplice in embracing appellant in the unlawful enterprise. There is some corroboration as to some facts sworn to by him relative to the movements-of the cars subsequent to the robbery; but the extent of it is only that, some cars, occupied by somebody, moved in the manner claimed by
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Beam; no witness identifies appellant in this connection; and no witness identifies appellant and Beam as having been seen together in a car on the day of the robbery.
Having reached the conclusion that the corroborative evidence is insufficient, the motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.