
    WOODS v. STATE.
    (No. 7677.)
    (Court of Criminal Appeals of Texas.
    March 21, 1923.
    On the Merits, April 25, 1923.)
    On Motion for a Writ of Certiorari.
    1. Criminal law <3=1116(8) — Office of writ of certiorari is to perfect record.
    The office of a writ of certiorari is to perfect a record; that is, to require the putting into it of something which is satisfactorily shown to have been erroneously omitted, or to correct something shown to be incorrect.
    2. Criminal law <3=1098, 1110(8) — In misdemeanor case statement of facts may be sepa- . rate from transcript; certiorari will not issue to require incorporation into transcript.
    A statement of facts in a misdemeanor case can be brought before the Court of Criminal Appeals separate and apart from the transcript, and that court will not in any case grant, a writ of certiorari to compel the clerk of the lower '■ court to copy into the transcript a statement of facts.
    3. Criminal law <3=1116(8) — Certiorari to perfect record unwarranted merely because statement of facts not approved by trial court.
    The fact that the trial judge is not shown to have proved statement of facts filed is not basis for a grant of a writ of certiorari to perfect the record.
    
      4. Criminal law <3=1110(8) — That transcript did not show certain bills of exception were approved by the trial court held not grounds for certiorari.
    That the transcript does not show that certain bills of exception were approved by the trial court is not grounds for the issuance of a -writ of certiorari to perfect the record, since, if the bills of exception were presented to the trial court, and he improperly refused to approve them, appellant has a right to a bystanders’ bill.
    5. Criminal law <&wkey;l 110(8) — That transcript does not bear signature of trial judge, overruling motion for new trial not grounds for certiorari.’
    The fact that the transcript does not bear ' the signature of the trial judge, overruling defendant’s motion for a new trial is insufficient to warrant issuance of a- writ of certiorari to 'perfect the record, since the signature of the -trial judge to the order overruling such motion for new trial would not be necessary if the transcript contained the certificate of the clerk showing that there was. entered and incorporated in the minutes of the court a judgment ¡overruling such motion.
    On the Merits.
    : 6. Criminal law <&wkey;5l I (I) — Testimony establishing only commission of act held Insuffi- : cient corroboration of accomplice.
    In a prosecution for throwing tacks upon a public highway, testimony by two gentlemen who stated that they found quantities of tacks in said road, but which did not point to any one ■ as the guilty party, held insufficient corroboration of accomplice testimony, under Vernon’s Ann. Code Cr. Proe. 1916, art. 801.
    7. Criminal law <3=742 (2) — Refusal to instruct that witness was accomplice held error.
    In a prosecution for throwing tacks upon a public highway, where a witness had testified that he drove a car in which accused and others were, and that the party purposely scattered the tacks, held, that the court erred in : refusing to instruct the jury that such witness was an accomplice, and apply the law of accomplice testimony, and in submittihg to the jury the question whether or not such witness was in fact an accomplice.
    8. Criminal law <3=5l&wkey;Thc law of accomplice testimony applies in a misdemeanor case.
    The law of accomplice testimony applies in a misdemeanor case.
    ■ Appeal from Gray County Court; John B. Ayres, Judge.
    
      ' Ted Woods was convicted of throwing tacks upotí a public highway, and he appeals- and moves for certiorari to perfect the' record.
    Motion for certiorari overruled, and judgment reversed, and cause remanded.
    ■ Hill & Ledbetter, of McLean, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State. , ' '
   On Motion for Writ of Certiorari.

LATTIMORE, J.

Appellant was convicted in the county court of Gray county of throwing tacks upon a public highway, and his punishment fixed at a fine of $50 and 60 days’ imprisonment in the county jail.

This case is before us at this time upon appellant’s application for a writ of certio-rari. Said writ is asked upon the following grounds:

“(1) The original statement of facts have been filed in this honorable court, and not copied in the transcript as required by law.
“(2) The statement of facts as filed does not show that the trial judge approved the same.
“(3) The transcript as filed in this honorable court does not show that the trial judge approved and ordered filed bill of exception No. 2.
“(4) The transcript does not bear the signature of the trial judge overruling defendant’s motion for a new trial.
“(5) The transcript as filed does not bear the signature of the trial judge approving defendant’s bill of exceptions No. 1, and ordering, same filed as a part of the record.”

The office of a writ of certiorari is to perfect a record; that is, to require the putting into the record of . something which is satisfactorily shown to have been erroneously omitted, or to correct something shown to be incorrect.. Reverting to the various propositions presented in appellant’s motion otr application Bor certiorari., we( observe that this court has held that it is not necessary that the statement of facts in a misdemeanor case be copied in the transcript.

A statement of facts in a misdemeanor case can be brought before this court separate and apart from, the transcript. This' court would not grant a writ of certiorari to compel the clerk of the court below to go to the needless trouble of copying into the transcript a statement of facts in any case.

The second ground of appellant’s motion is that the statement of facts does not show that the trial judge approved same. A statement such as this cannot form the basis of a grant of this writ. As far as we are informed, the trial judge was not compelled by law or as the result of any facts stated to approve the statement of facts.

It is stated in appellant’s other grounds of his motion that the transcript does not show that certain bills of exception were approved by ■ the trial judge: There is no showing or attempted showing of any facts upon which we could grant the writ on this ground. It is not shown that said bills of exception were presented to the trial court; and that he improperly refused to approve them. If such had been the case, appellant is given his right to a bystanders’ bill, or to make sufficient showing here that he has been deprived of his bill of exceptions.

The signature of the trial judge to the order overruling appellant’s motion for new trial would not be held necessary if the transcript contained the certificate of the clerk of the lower court showing-that there was entered and incorporated in the minutes of the court a judgment overruling such motion.

We regret that none of the matters contained in this motion are presented in such manner as that this court is authorized to grant the relief prayed for.

Appellant’s motion for certiorari will be overruled.

On the Merits.

Appellant was convicted in the county court of Gray county of throwing tacks upon-a public highway, and his punishment fixed at a fine of $50 and 60 days’ confinement in the county jail.

A witness named Cousins testified that on the night in question he' drove a car in which appellant and a number of other boys were, and that the party purposely scattered tacks in a public road in Gray county.. The matter of so doing was discussed among them before they left McLean, and witness drove his party to the place where they got the tacks, knowing that they intended to get them, and he was present driving the car when they scattered the tacks in the road. No other witness testified to the presence and participation of appellant in the placing of said tacks in said road, and the only other testimony offered on behalf of the state was that of two gentlemen who stated that they found quantities of tacks in said road.

The Legislature of our state has seen fit to write into the body of our laws a statute that forbids the legal conviction of a citizen upon the testimony of an accomplice unless such testimony be corroborated by other evidence tending to connect the aerased with the commission of the crime, and it is expressly stated that such corroborating evidence is not sufficient if it merely shows the commission of the offense. Article 801, Vernon’s G. C. P. Measuring the sufficiency of the testimony in the instant case by the rule laid down in said statute, we are forced to conclude that the evidence is n5t enough. The testimony of the two witnesses who found tacks in the road went only to show that an offense had been committed. It pointed to no one as the guilty agent. The only other testimony in the record is that of the accomplice. Analysis and argument could make no plainer the necessary application of the statutory rule mentioned.

Appellant asked the court to instruct the jury that state witnéss Cousins was an accomplice, and in applying the law of accomplice testimony the court refused, but instead submitted to the jury the question as to whether said witness was an accomplice. We are of opinion the court should have instructed the jury affirmatively that said witness was an accomplice. It is well settled that the law of accomplice testimony applies 'in a misdemeanor case. Merritt v. State, 10 Tex. App. 402; Wiley v. State, 33 Tex. Cr. R. 406, 26 S. W. 723; Deary v. State, 62 Tex. Cr. R. 352, 137 S. W. 699; Wallace v. State, 63 Tex. Cr. R. 611, 141 S. W. 95.

For the errors above mentioned, the judgment will be reversed, and ithe cause remanded. 
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