
    McKINLEY v. STATE.
    (No. 8920.)
    (Court of Criminal Appeals of Texas.
    March 11, 1925.
    State’s Rehearing Granted April 14, 1926.)
    1. Criminal law <&wkey;80 — -It was essential that state prove slayer’s guilt of murder as a predicate for conviction of accused as accomplice.
    In a prosecution of defendant as an accomplice to offense of murder, it was essential that state prove slayer’s guilt of murder as a predicate for the conviction of appellant as his accomplice, and it was right of accused as an element of defense to negative slayer’s guilt.
    2. Criminal law <&wkey;528 — Doubt raised by slayer’s confession as to his guilt held available to j,ury upon question of guilt or innocence of accomplice.
    Where .state introduced slayer’s confession to prove his guilt on trial of accomplice, held that, if confession threw a doubt upon slayer’s guilt, this evidence, being before the jury, was available to them upon the question of accomplice’s innocence or guilt.
    3. Criminal law <!&wkey;556 — State having introduced slayer’s confession as means of convicting accomplice was bound by confession so far as exculpatory, unless disproved.
    Where state introduced slayer’s confession as a means of convicting the accused of being an accomplice, the state was bound by confession in so far as it was exculpatory of the slayer, unless the exculpatory part was disproved.
    
      <&wkey;>J?or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes .
    
      4. Criminal law <&wkey;781 (8)— Ordinarily, when state introduces confession containing exculpatory statements, it is incumbent upon court to instruct that such statements are regarded as true unless disproved-.
    Ordinarily, when state introduces confession containing exculpatory statements, it is incumbent upon court to instruct that such statements are regarded as true unless disproved, but this rule has been relaxed where accused on trial gives testimony in accord with the exculpatory features of his confession, and his defensive theory is fairly submitted to the jury.
    5. Criminal law <©=>552(1).
    In a case of circumstantial evidence, all available avenues likely to reveal the truth should be explored.
    •6. Criminal law <©=>317.
    Failure of party upon whom rests burden of proof to make use of testimony which is important and obtainable is to be given great weight in favor of opposing party.
    On Motion for Rehearing. .
    7. Homicide <&wkey;234(5) — Evidence held sufficient to warrant finding that accused furnished aid to slayer for purpose of assisting him in execution of crime of murder.
    In a prosecution of defendant as an, accomplice of slayer in commission of murder, evidence )mid sufficient to warrant jury finding that accused, by procuring meeting of deceased with slayer and preventing intrusion of other persons, aided in execution of crime and to sustain conviction.
    •8. Criminal law <&wkey;554 — Weight of accused’s testimony as to purpose in bringing deceased and slayer together held for jury.
    In a prosecution of defendant as accomplice -in commission of murder, weight of accused’s testimony that his only purpose in bringing deceased and slayer together was in order to ob-' tain part of §200 offered by a slayer for the effecting of such meeting held for jury, and jury had right to refuse to accept same.
    Morrow, P. J., dissenting on rehearing.
    <©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Morris County; R. T. 'Wilkinson, Judge.
    George McKinley was convicted as an accomplice to the offense of murder, and he appeals.
    Affirmed on rehearing.
    S. P. Pounders, of Mt. Pleasant, and O. G. Engledow, of Pittsburg, for appellant.
    T. 0. Hutchings, Dist. Atty., and Sam ■Williams, Co. Atty., both of Mt. Pleasant, Tom Garrard, State’s Atty., of Lubbock, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   MORROW, P. J.

The conviction is for an accomplice to the offense of murder; punishment fixed at confinement in the penitentiary for a period of six years.

Ottis Ballard, a boy about 17 years of age, was murdered. There is evidence sufficient to support the finding that the murder was committed by Clem Gray, a white man, and Burl Kemp, a negro. Kemp testified in substance that he and Gray made an agreement to kill Ballard, but that Gray struck the fatal blow in the absence of the appellant.

Gray’s confession was introduced in evidence by the state. According to it, Gray sought an interview with Ottis Ballard in order that Ballard might be induced to leave the country so that his testimony might not be used against Gray on an indictment pending against both Gray and Ballard for an alleged felony. According to the confession, while Gray was talking to Ballard, the latter was killed by Kemp, and Gray and Kemp then hid the body in a lake. There were circumstances introduced corroborative of Kemp’s testimony connecting Gray with the homicide. The evidence is clear that Gray had a motive for the homicide in' that he was anxious to avoid the appearance of Ballard as a witness in the case mentioned. Evidence was introduced . to the effect that Ballard was anxious to avoid testifying against Gray, and had said that he would not do so. There was also evidence that the father of Ballard was insistent that he should testify against Gray and not leave the country.

Ballard was killed on a Monday night. A short time before his death he and several other boys including the appellant were at a schoolhouse and engaged in singing. They had some whisky which they were drinking, and which, according to the evidence, had been furnished McKinley by Gray. After singing at the schoolhouse for a time, the party removed to a branch some distance therefrom. The whisky gave out, and appellant and Ballard went for some more. Ballard stopped at the schoolhouse while the appellant went to the house of Gray, obtained the whisky, and returned. Gray followed the appellant to the schoolhouse, where he met Ballard. Appellant then joined the other boys who were in'the branch, leaving Gray and Ballard in company with each other. Appellant reported to the other boys that he left Ballard in company with a woman, and said nothing to them about the presence of Gray. The homicide took place at a point about 800 yards from the schoolhouse, to which, according to the testimony, Gray and Ballard had gone together.

Appellant testified in his own behalf. From his testimony it appears that Paul Keith, Ottis Ballard, Aubrey Smith, and others were in the habit of singing and drinking whisky whenever it could be obtained. On the night -of the homicide they were engaged in this occupation. One of the parties suggested that they needed more whisky. Appellant said he would get it, but wanted some one to go with him, and Ballard volunteered to accompany him. Upon reaching the schoolhouse, Ballard was requested to wait, as the person from whom appellant was getting the whisky expected him to be alone. Appellant went to the home of Gray, where he saw Burl Kemp. He was told by Kemp that Gray had company, whereupon he returned to the schoolhouse. Ballard suggested that the appellant go again for the whisky. He then returned to Gray’s house, got a small bottle of whisky, and told Gray that Ballard was at the schoolhouse. Appellant soon after returned to the schoolhouse. Gray followed him and engaged in a conversation with Ballard. Gray whispered to the appellant to keep the other boys where they were singing. Appellant went away, leaving Ballard in company with Gray. Upon joining his companions, appellant told them that Ballard was with a girl. After waiting for a while for Ballard to return, the remainder of the party went to their homes. On the following morning the father of Ballard made inquiry of the appellant, and was told that Ottis Ballard was left by the appellant in company with a woman at the schoolhouse.

Appellant was arrested and placed in jail. He was later taken to a place where blood was discovered. He said he thought that the officers had put the blood and hair there in order to entrap him into making some kind of a statement'; that he supposed that the blood was a ruse to cover the departure of Ballard on his way to leave the country. According to the appellant, he had been told by Paul Keith that Gray had proposed to give the appellant and Keith $100 each if they would contrive to give Gray an opportunity to talk to Ballard to the end that Ballard might be persuaded to go to South America, and that appellant and Keith would accompany him. Appellant said that he did not know at the time that Ballard had been killed and had no information that Gray intended to kill him; that he had no idea that Gray would do so, or that he would harm him in any' way. He believed that Gray’s sole purpose was to persuade Ballard to leave the country and furnish the means of doing so. He said also that Keith had told him that there was no possibility of Gray injuring Ballard; that such must have been foreign to his purpose, because his object was to avoid trouble, as it was already threatening him, rather than to get into more.

In the written confession which was introduced by the state, Gray said that Paul Keith and George McKinley had come to his house and told him that Ottis Ballard had said that if Gray would give him $100 more he would leave and go to South America and not appear in court against him in the burglary case which was pending, and that they further said that if he would give each of them $100 they would accompany Ballard to South America and guarantee that he went there; that Keith said that both he and Ottis Ballard realized that they would go to the penitentiary, and that they would prefer to go to South America.

It was further stated in the confession that appellant had stated that they could arrange for Gray to talk to Ballard, and later appellant came to Gray and told him that the arrangement could be made; that Ballard was at the schoolhouse. Upon the departure of the appellant, Gray went to the schoolhouse, where he found the appellant and Ballard, and heard the other boys singing some distance away; that after talking 'to Ballard for a while and observing other people coming, he suggested that they walk into the woods, which they did some 200 yards distant.

A pant of the confession of Gray introduced by the appellant was to the effect that while he and Ballard were talking together, Kemp came up and struck Ballard over the head with a piece of iron, killing him; that Gray protested and undertook to prevent it, but the blow was so quickly inflicted that he was unable to prevent it. The state then introduced other parts of the confession showing that Gray and Kemp disposed of the body of the deceased by hiding it in the water some distance away. Gray had been convicted of the murder of Ballard, and the facts touching his ease are stated in the opinion in the case, which opinion has not yet been repprted.

The written statement of the appellant was introduced in evidence, partly by ,the appellant and partly by the state. The initiative was taken by the state. In the part of the statement introduced by the appellant, he stated ¡that Paul Keith told him that Gray had offered them $100 each if they would get Ballard out where he could talk to him, and stated in substance that his conduct in bringing about the meeting of Ballard and Gray was in pursuance of .that agreement.

A controverted point is whether the appellant possessed knowledge of the intent of Gray to murder the deceased. To meet the burden of the state upon this question, appellant insists that the evidence is insufficient. In Gray’s confession introduced in evidence, such knowledge on the part of the appellant is at least inferentially negatived, due to the fact that in his confession Gray said that his arrangement with the appellant was that the interview between Ballard and Gray was to further the design of Gray to have Ballard absent himself from Gray’s trial; it being the understanding between Gray and appellant that Keith and the appellant, in consideration of $100 each paid by Gray, would facilitate the departure of Ballard and accompany him to South America. Moreover, in Gray’s confession, introduced by the . state, he disclaims any intent to murder, and insists that against his protest the murder was committed by Kemp.

It was essential that the state prove Gray’s guilt of the murder as a predicate for the conviction of the appellant as an accomplice to the murder. As one of the means of effecting this, Gray’s confession was used by the state. It was the right of the appellant, as an element of defense, to negative Gray’s guilt. Gray’s confession, therefore, could only be used by the state to show the guilt of Gray. If the state, by the confession, in its efforts to show Gray’s guilt, made proof which threw a doubt upon Gray’s guilt of murder, this evidence, being before the jury, was available to them upon the cardinal issue of the guilt or innocence of the appellant. See Bishop’s New Grim. Proc. vol. 3, § 7; Bishop’s New Grim. Law, vol. 1, § 667, The state, having introduced Gray’s confession as one of the means of convicting the appellant, was bound by that pant of the confession introduced by it so far as it was exculpatory of Gray, unless the exculpatory part was disproved. See Pratt v. State, 109 S. W. 138, 53 Tex. Cr. R. 281; Pharr v. State, 7 Tex. App. 472; Combs v. State, 108 S. W. 649, 52 Tex. Cr. R. 613.

In instructing the jury the court in its charge embraced this paragraph:

“In this case there has been evidence admitted before you of statement signed by Olem Gray. * * * This testimony was admitted before you for your consideration in passing on the guilt of Olem Gray, and you cannot consider it for any other purpose and it is limited to your consideration, solely and exclusively, in passing upon the question as to the guilt or innocence of Olem Gray, and you cannot consider it for any other purpose.”

Appellant excepted to the charge in the following language:

“ * * * Because the court fails to charge the jury that where admissions and confessions are introduced in evidence by the state that such admissions and confessions are to be considered as a whole, and that where such admissions or confessions contain exculpatory statements that the state is bound by such statements unless the truth of such statements are proven to be untrue.”

The appellant’s confession was introduced in evidence, partly by the state and partly by the accused, in which confession he admitted that he had been instrumental in arranging an interview between Gray and the deceased on the night that Ballard was hilled, and in which he also said that his action was in ignorance of any intent on the part of Gray to injure Ballard, but was upon the belief by the appellant that Gray’s purpose was' confined to an effort to carry out the agreement to persuade Ballard to leave the country. Ordinarily, when the state introduces a confession of accused containing exculpatory statements, it is incumbent upon the court to instruct the jury that the exculpatory statements are regarded as true unless disproved. Maxey v. State, 124 S. W. 927, 58 Tex. Cr. R. 121; Winkler v. State, 126 S. W. 1134, 58 Tex. Cr. R. 568; Jackson v. State, 115 S. W. 262, 55 Tex. Cr. R. 86, 131 Am. St. Rep. 792; Gaines v. State, 127 S. W. 181, 58 Tex. Cr. R. 639; Banks v. State, 119 S. W. 847, 56 Tex. Cr. R. 265. This rule, however, has been relaxed in a case where the accused on trial testifies and his testimony before the jury is in accord with the exculpatory features of his confession, and his defensive theory arising from his testimony and coinciding with the exculpatory theory advanced in the confession is fairly submitted to the jury. See Casey v. State, 113 S. W. 534, 54 Tex. Cr. R. 584.

The instruction given the jury, however, touching Gray’s confession, was calculated to lead the jury to understand that the exculpatory statements therein as to Gray’s guilt could not be considered for any purpose favorable to the appellant. Whether the exception to the charge which we have quoted was sufficient to direct the court’s attention to this fault in its charge, or whether, in connection with the special charge requested and refused, it would be sufficient to require a reversal of the judgment on the question of practice, is a matter of doubt. They are mentioned, however, in connection with what is conceived to be a fundamental weakness in the case, namely, the want of cogent testimony to establish the appellant’s knowledge of Gray’s intent to kill Ballard.

Bo far as we are able to comprehend the evidence, all that is affirmative in the record is contrary to the state’s theory that appellant knew that Gray intended to kill Ballard, or that appellant’s connection in bringing Gray and Ballard together was upon other motive or information than that stated in the confession of Gray, in the confession of the appellant and in his testimony. It is to be noted that in the testimony introduced by the state and the appellant it is made to appear that appellant’s reason for bringing Gray and Ballard together upon the occasion of Ballard’s death was the information which the appellant had received from Paul Keith to the effect that Gray had stated that he would give to both appellant and Keith $100 each if they would arrange a meeting whereby Gray could talk to Ballard and induce him to' go to South America with Keith and the appellant. We find in the record no denial by Keith of this alleged fact; nor do we find any reason given for the failure to produce Keith as a witness.

It is the theory of the state that, while the evidence is affirmative that the appellant had no knowledge of Gray’s intention to kill the deceased, still the circumstances warranted the jury, tested by the principles and rules of circumstantial evidence, in the inference that the appellant did have such knowledge. This inference is in contravention of the claim that Gray had told Keith that he would give Keith and the appellant 8100 each if they would arrange a meeting between Gray and Ballard and would accompany Ballard to South America. The state having put this evidence in the record and the appellant also having put it in, it would have been pertinent that the state produce Keith as a witness to the end that the jury might determine his version of the affair. See Wilkie v. State,, 203 S. W. 1091, 83 Tex. Cr. R. 490; Taylor v. State, 221 S. W. 611, 87 Tex. Cr. R. 334, see page 337; Davis v. State, 231 S. W. 784, 89 Tex. Cr. R. 411, see page 415.

In a case of circumstantial evidence, all available avenues likely to reveal the truth should be explored. The failure of a party upon whom rests the burden of proof to make use of testimony shown by the record to be important and not shown to be unobtainable is to be given weight in favor of the opposing party. Entertaining as we do what is deemed a well-founded doubt as to whether the evidence which .points to the knowledge on the part of the appellant of the murderous intention of Gray is of a character as excludes every reasonable hypothesis arising from the evidence save that of guilt, or such as to create to a moral certainty of essential criminating fact, and taking into account the charge of the court to which we have adverted in effect withdrawing from the jury any probative force in favor of the appellant of the exculpatory declarations of Gray introduced by the state, and the refusal of the special charge mentioned, we are constrained to apply in behalf of the accused the force of such doubt and order a reversal of the judgment. It is so ordered.

On Motion for Rehearing.

LATTIMORE, J.

We have carefully considered the question as to whether the evidence was cogent enough to show that this appellant, prior to the murder of Ottis Ballard, had advised or encouraged Clem Gray to commit said murder, or that appellant furnished aid of any kind to said Gray for the purpose of assisting him in the execution of said crime. To sustain the correctness of our conclusion that it is of such force, we present a brief summary of the facts:

That appellant lured Ballard to a lonely place in pursuance of an agreement so to do; that he then informed Gray that Ballard was at said place; that he later kept Ballard there until Gray came; that he then loft them there together and prevented other parties from going to where Gray and deceased were, and made false statements then and thereafter; that he did these things for a consideration of 8200 to be paid by Gray, 8100 to appellant and $100 to his code-fendant Keith; that the purpose for which he brought about the' meeting between Gray, ' and deceased, as admitted by appellant when a witness herein, was illegal, i. e., that Gray might induce deceased to leave the country and not appear as a witness against him in a felony case then pending; that appellant saw Gray and deceased leaving the spot where he had brought them together, and concealed their identity by a- false statement; that deceased was slain by Gray that night not far from where appellant brought them together; that appellant repeated his false statements the next day; that he looked lightly upon the blood of deceased on the ground where he was killed and where his body had been dragged and spoke jestingly of said evidence of violence; that the size of the town where all the parties lived and these things occurred was such as to make-absurd the proposition that appellant believed that Gray was willing to give $200 to parties whose only consideration for same was merely to bring about a meeting between himself and deceased that they might have a conversation — these and .other facts seem-without dispute in the record.

In the face of all these facts appellant testified that his only purpose in what he did was to bring deceased to where Gray could talk to him in order to obtain his part of the $200 offered by Gray to appellant and Keith if they could effect such meeting. The-weight of the testimony above recited was for the jury. Nothing supported appellant’s claim save his own testimony. The jury had a right to refuse to accept same. Conceding that Gray’s purpose was to rid himself of the testimony of Ballard, by killing him if necessary, and that he accomplished said purpose by slaying deceased, we must concede further under this record that the bringing of Gray and Ballard together on the-fatal night, and his preventing the intrusion upon them of other persons, aided Gray in the accomplishment of the crime of murder— in the execution of his purpose. This then, in order to fully meet the law as to an accomplice, would only leave for solution by the jury the issue as to appellant’s purpose. From the whole record we conclude the jury justified in their verdict expressive of their belief that his purpose was to aid Gray in bringing about the death of Ballard.

A careful review of the record leads us to believe ourselves mistaken in any view that the state introduced that part of the appellant’s written confession which contained exculpatory statements. All of said confession was offered, parts by the state and parts by appellant, and apparently some one on the trial marked thereon those parts so respectively introduced. That part which contains the exculpatory statements referred to in our-original opinion was introduced by the appellant. No such statements anywhere appear in those parts offered by the state. Reversal was ordered in the original opinion because of the supposed error of the refusal of the trial court to charge on the duty of the state in regard to proving untrue exculpatory parts of said confession asserted by us to have been introduced by the state; Now recognizing ourselves in error in this conclusion, and believing the evidence sufficient, necessitates the granting of the state’s motion for rehearing, the setting aside of the order of reversal, and that we now direct an affirmance of the case, which is accordingly so ordered.

MORROW, P. J., is of opinion the facts are insufficient, and for that reason dissents from the affirmance.  