
    NEWBORN v. STATE.
    (No. 10234.)
    (Court of Criminal Appeals of Texas.
    March 16, 1927.)
    1. Criminal law <&wkey;77 — An “accessory” is one who, knowing of offense, conceals offender or aids him to evade arrest, trial, or sentence.
    An “accessory” is one who, knowing that offense has been committed, conceals offender or aids him in evading arrest, trial, or execution of sentence.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accessory.]
    2. Criminal law &wkey;>507(3) — One procuring false testimony to enable another to evade punishment is an “accessory,” and, when a witness, is an “accomplice.”
    One procuring false testimony to enable another whom he knows, to have committed crime to evade arrest, prosecution, or conviction, is an accessory, and, if he becomes state’s witness, is an “accomplice.”
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    3. Criminal law <&wkey;>780(2) — Failure to charge law of accomplice testimony held error, where state witness had attempted: to procure testimony for defendant’s alibi.
    In prosecution for failure to stop automobile and render aid to one struck therewith, where state witness had previously attempted to procure witnesses to testify as to defendant’s alibi, failure to instruct on law of accomplice testimony was error.
    
      4. Criminal law &wkey;662(4) — Admitting written statement of witness as his original testimony in trial held error (Const, art. I, § 10).
    Where state witness made written statement to the assistant county attorney and thereafter became witness, in prosecution for failure to stop automobile and render aid, receipt in evidence of 'his written statement as his original testimony before cross-examination was error, in view of requirement of Const, art. 1, § 10, that witness shall confront defendant.
    Appeal from District Court, Jefferson County; J. D. Campbell, Judge.
    Prank Newborn was convicted of striking a pedestrian with his automobile and failing to stop and render aid, and he appeals.
    Reversed and remanded.
    Howth, Adams & Hart and John T. Hitching, all of Beaumont, for appellant.
    Sain D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Jefferson county for failing to stop automobile and render aid; punishment, one year and one day in the state penitentiary.

Mr. Miller was struck by an automobile and killed on October 22, 1925. Witness Day for the state testified that a Pord car containing two people and going about 40 miles an hour at Pannett and in front of the store of Mr. Quaid struck Miller about 7 o’clock p. m., breaking his legs, from the effect of which injury Mr.' Miller died that night about 11 o’clock. Witness could not identify the occupants of the car or tell whether they were white or black: .The ear did not stop. Elmer Smith for the state swore that he and appellant were in a Pord car on the night in question; that both were drinking; the car was driven by appellant, and in front of Quaid’s store in Pannett they struck a man, but did not stop; they went up the road to a point between Pannett and Cheek and then turned and went back to the town of Winnie, in or near which both of them lived; the next morning they learned that the man was dead; that evening they read in a paper an account of his death, and appellant said, “Oh! the devil with that.” Shown a written statement, witness said it was made by him, and was true and correct, and contained what he meant and intended should be his testimony now given. At this point the state, over objection, introduced the written statement, signed by witness, and which was shown later to have been made by him before the assistant county attorney. On cross-examination Smith admitted that he had tried to procure witnesses who would swear that he and appellant were not in Pannett on the night in question, but were in the town of Winnie some 15 miles distant from Pannett, and that they did not leave Winnie at all.

There seems no question of the fact that Smith was an accomplice. All persons who are principals, accomplices, or accessories to a given crime who testify against the defendant seem to be universally held accomplices. Harper v. State, 92 Tex. Crim. R. 657, 245 S. W. 79. An accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. In Blakely v. State, 24 Tex. App. 616, 7 S. W. 238, 5 Am. St. Rep. 912, we held that one who gives false testimony in order that the offender may evade prosecution is an accomplice witness. In Harrison v. State, 69 Tex. Or. R. 291, 153 S. W. 139, we held that one who, knowing that an offense has been committed, tries to spirit away or hires material witnesses to not 'appear before the grand jury, is an accessory. We have no doubt that one who procures false testimony or endeavors to procure same with the purpose of enabling another whom he knows to have committed a crime to evade arrest, prosecution, or conviction for such a crime, would be an accessory, and, if such person became a witness for the state, he would be an accomplice.

Appellant excepted to the charge of the court for not instructing the jury that Smith was an accomplice, and also presented a special charge asking that the jury be .so told; which charge was refused. In our opinion the learned trial judge fell into error in failing to instruct the jury on the law of accomplice testimony.

We are not favored with a brief by the state in this ease, other than a confession of error on the part of the state’s attorney with this court based on the proposition that the trial court failed to charge on accomplice testimony. We fail to perceive any legal ground for the admission of the written statement made by Elmer Smith before the assistant county attorney. We know of no practice which would allow the state to have a witness write down his testimony and then go upon the witness stand and identify the written document and have the state -offer same as his testimony. We do not believe a fair and orderly conduct of criminal trials, under the rules and practice in this state, contemplates any such procedure. There had been no attack upon Smith and the written statement was not offered for the purpose of bolstering up his testimony, but was offered as his original testimony before there had been any cross-examination of him by the defense. Our Constitution provides (article 1, § 10) that a defendant in a criminal •case shall be confronted by the witnesses against him, and we do not believe this demand of the Constitution is satisfied by the production of his testimony in writing where the witness is able to testify, and is present in person, or to offer as a substitute for his oral personal testimony a written statement theretofore made by the witness under some other circumstances. Chumley v. State, 20 Tex. App. 547; Stockholm v. State, 24 Tex. App. 598, 7 S. W. 338.

There are a number of bills of exception complaining of the examination of said witness Elmer Smith by the state’s attorney by •questions which are extremely leading and should not have been permitted. We are not in accord with appellant’s motion to quash the indictment in this case.

The attention of the state is called to the very slight corroboration of the accomplice, Smith, in this case. Mr. Day could not identify the two persons who were in the car that struck Miller, or either of them. Mr. Day and Elmer Smith were the only two witnesses offered by the state before it rested. Appellant offered many witnesses in making out his ease in chief, who testified that he was in Winnie that night at the time of the alleged collision and that he did .not leave and could not have been in Eannett at the time of the alleged collision. In its rebuttal the state offered a Mr. Pollock, who testified that he saw appellant and Elmer Smith reading a paper in Winnie the evening after Mr. Miller was struck by the car; that appellant threw the paper down, and said: “Oh, hell; that is all bull.” This does not correspond with the statement attributed to appellant by Elmer Smith at the same time, and seems to have no particular probative force. The state introduced next a Mr. Thornton, who said he went to Eannett on the night Mr. Miller was killed and saw him lying in the store, and this witness fixes the time at about five minutes after 7 o’clock. The state introduced a Mr. Phelps, who said that he was in the town of Hamshire, Tex., on the afternoon or night Mr. Miller was killed, and that he came very near being struck by a car going toward Eannett and traveling at a high rate of speed. He did not attempt to identify any one in the ear. Two Blisses Wingate testified that the witness Thornton came after them at Eannett the night Mr. Miller was struck by the ear. There had been some statements to the effect that the car in which Smith said he and appellant were driving had but one headlight. The Wingate sisters testified that Thornton’s car had both lights burning. The state next introduced BIr. Broun, who testified that he was present when Elmer Smith made the written statement referred to and signed it as a witness. BIr. Davidson testi-fled that he was assistant county attorney and wrote down the statement -of Smith. He said that appellant was not in the room when Smith made the statement and signed it. We see no reason for admitting the testimony of Broun and Davidson, but it was not objected to. The above is the extent of the state’s corroboration of Smith. We are in serious doubt of the sufficience of the corroboration, and the attention of the state is called to this fact in view of another trial.

For the errors mentioned the judgment will be reversed and the cause remanded. 
      ®=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <®^?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     