
    DEATHERAGE v. STATE.
    (No. 6707.)
    (Court of Criminal Appeals of Texas.
    March 1, 1922.)
    1. Criminal law <&wkey;>507!/2 — Objection by state that witnesses were charged1 with same offense does not establish the fact.
    An objection by the state to testimony of witnesses offered by defendant for the reason that the witnesses were charged by information with the same offense as that for which defendant was on trial, does not establish the truth of the ground of objection, so that it was error to exclude the testimony of such witnesses, without evidence to show the charge against them.
    2. Criminal law <&wkey;507(7) — Woman procured is not accomplice to procuring.
    The woman procured is not an accomplice to the offense of procuring, unless she originated the enterprise in some manner.
    3. Criminal law <&wkey;507i/2, 780(2) — .Testimony of boy held to make him an accomplice to pro- I curing, and to require instruction thereon.
    Testimony by a boy that he first suggested he would have intercourse wtih a woman if the o.thers would bring her makes him an accomplice to the procuring, and requires an instruction as to the law applicable to the testimony of an accomplice.
    Appeal from Kent County Court; B. P. Vardiman, Judge.
    Monroe Deatherage was convicted of procuring, and he appeals.
    Reversed and remanded.
    Murchison & Davis, of Haskell, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE, J. ■

Appellant was convicted in the county court of Kent county of the offense of procuring, and his punishment fixed at a fine of 850 and one month imprisonment in the county jail. The facts in testimony are too disgusting to disfigure the pages of our Reports.

The state introduced three witnesses, one of whom went no further than to testify that he had filed a complaint against appellant. Another of said witnesses wag the son of the complainant. On cross-examination this witness admitted that he might himself have first suggested the procuring of the negro woman, with whom it is shown that said witness, a 14 year old boy; had intercourse when she came to the barber shop. If any part of his testimony is to be believed, it shows that, as the result of some demonstrations and talk on the part of said boy, a negro woman was sent for and came to a rear room behind the barber shop of one Mayfield, and there in the presence of a number of men said 14 year old boy indulged in sexual intercourse with said woman. The procuring charged against this appellant is the bringing of said woman to the barber shop. The boy testified that, after the discussion of what he could and would do if a woman were present, one Boling said he would go and get a negro woman and bring her to the shop. He testified that this appellant said he would get his car and take George Boling to get said woman; that appellant and Boling left together;. that later they came back together to the shop, and “they said” they had the negro woman in the rear of the shop. Said negro woman herself was used by the state as a witness, and testified that she was on the street and met George Boling and appellant walking along; that appellant said nothing to her, but went on up the street; that Boling stopped and told her that she could make some money by going up to the barber shop, and that she went; and when she arrived at said place she details how the act of intercourse between herself and said boy took place, and gives the names of those who were present. She denies the presence of appellant, and denies that he said anything to her at any time about going to said place, or that he used any means of any kind to induce her to come to said place, or to have intercourse with said boy. A number of contradictory statements of said boy were given in testimony by various witnesses. It appears from the record that George Boling had been put upon trial for the same offense here charged, and had been acquitted. He testified as a witness for the appellant, and entirely negatived the truth of the story told attempting to connect appellant with the said transaction.

The defendant offered as witnesses Ernest Mayfield and Herbert Deatherage. Their testimony is stated in a bill of exceptions, and appears to be material. The' state objected to such witnesses testifying upon the ground that they were under indictment, or were by information charged with the same offense as that here charged against appellant. No proof of such fact was offered in support of this objection. It was not shown in any way that complaints or indictments were on file against said parties. The trial court erred in sustaining such objections. The mere statement of an objection, good only in the event of the existence of certain facts, would not appear to be of such character as that it should be sustained, unless .such facts are also made to appear. Thomas v. State, 66 Tex. Cr. R. 326, 146 S. W. 878; Traylor v. State (Tex. Cr. App.) 23 S. W. 798; Day v. State, 27 Tex. App. 143, 11 S. W. 36.

Appellant also has a bill of exceptions to the refusal .of the trial court to instruct the jury that the woman Dora Jones was an accomplice. We are of opinion that, unless it was shown that she herself originated the criminal enterprise and in some manner engineered or procured the solicitation extended to her to partake of the alleged intercourse, she would not be shown to be an accomplice.

In view of the fact that the case must be reversed for the refusal of the trial court to permit the evidence of Mayfield and Herbert Deatherage, we further observe that if the witness Hubert Holley should testify upon another trial that he suggested to the other men that, if they would go and get this woman and bring her to this place, he would have intercourse with her, this in our judgment would make of him an accomplice, and the law applicable to that character of testimony should be given and applied to him. We have serious doubt as to the sufficiency of the evidence, as same appears in the record, to sustain a conviction. Where the state relies upon two witnesses, one of whom, the boy,' only testified circumstantially to any solicitation or procurement on the part of appellant, and the other of whom, the woman, testified positively that appellant did not in any form or fashion solicit or procure her, and further testifies positively that appellant was not present when the act of intercourse' took place with the boy, the evidence would' hardly seem sufficient. Reliance only upon, two witnesses who pointedly contradict each other upon material matters, and one of. whom denies entirely the guilt of appellant, would hardly justify the punishment of a citizen for a crime that involves the amount of moral turpitude attaching to an offense such as that here charged.

For the reasons above mentioned, the judgment of the trial court will be reversed, and; the cause remanded. 
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