
    SAVAGE v. STATE.
    (No. 3273.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1914.
    Concurring Opinion Nov. 11. 1914.)
    1. Bribery (§ 11) — Attempt to Bribe Witness — Evidence—Subposna.
    In a prosecution for attempting to bribe a witness, the uncontradicted testimony of a number of witnesses that the witness on whom the attempt at bribery was made had been duly summoned was sufficient evidence of the summoning, without the introduction of the sub-poeha.
    [Ed. Note. — For other cases, see Bribery, Cent. Dig. § 10; Dec. Dig. § 11.]
    2. Witnesses (§ 358) — Redirect Examination — Explanation oe Testimony on Cross-Examination.
    In a prosecution for offering to bribe a witness, where defendant, on cross-examination of the witness alleged to have been bribed, and to impeach his credit, showed that such witness had signed defendant’s name to checks, it was proper for the state to redirect examination to show that, after the indictment against him, defendant had gone to witness and offered and agreed to pay him $1,000 to leave the state and not appear as a witness against him, that witness agreed to accept it and- did leave the state, and, in accordance with defendant’s instructions, had signed defendant’s name to the checks; that being merely explanatory of why he had signed defendant’s name thereto.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. § 358.]
    S.Criminal Law (§ 351) — Evidence—Tampering with Witness.
    Such explanatory testimony was admissible as showing defendant’s attempt to tamper with the witness as a circumstance tending to show his guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785, 930-932; Dec. Dig. § 351.)
    4. Criminal Law (§ 424) — Evidence—Declarations.
    In a prosecution charging one T., with others, as a principal in offering to bribe a witness, where none of the defendants requested- a severance and were jointly tried, T.’s voluntary statement, made before the grand jury, reduced to writing and signed by him, was admissible as against him alone.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.]
    5. Criminal Law (§ 706) — Trial—Conduct of Prosecuting Attorney.
    In a prosecution of four jointly indicted and tried for offering to bribe a witness, the fact that, at the close of the testimony, the court did not deem the evidence sufficient to authorize the conviction of one of the defendants, and withdrew a statement made by such defendant and admitted in evidence, did not show that the district attorney was guilty of improper conduct, where there was no evidence that he acted in bad faith, and where he appeared to act in an earnest effort to produce evidence to convict all four defendants.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1661; Dec. Dig. § 706.]
    6. Criminal Law (§ 59) — “Accomplice”— Detection of Crime.
    One who originates a crime or is instrumental in its initiation, even though a detective or other officer, is an “accomplice”; but if he is approached, and all his steps are taken with a view of detecting the crime, he is not an “accomplice” to such crime.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.
    
    For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    7. Criminal Law (§ 742) — Question for Jury-Accomplice.
    In a prosecution for offering to bribe a duly summoned witness not to testify and to disappear from the country, held, on the evidence, that whether the witness, to whom the alleged offer was made, was an accomplice was for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1721; Dec. Dig; § 742.]
    8. Criminal Law (§ 809) — Instructions-Misleading Instruction.
    In a prosecution of four jointly indicted and tried for offering to bribe a witness, an instruction that, where several defendants are tried together, the jury may convict such of them as they may believe from the evidence, beyond reasonable dbubt, to be guilty, and acquit the others, in view of a verdict acquitting part of the defendants and convicting one, was not misleading as requiring the jury, on finding one guilty, to find all guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1961-1967; Dec. Dig. § 809.]
    9. Criminal Law (§§ 763, 764) — Instructions — Weight of Evidence.
    In a prosecution for offering to bribe a witness, where evidence as to defendant’s tampering with a witness after his indictment was admissible on the issue of his guilt, it was not proper for the court to limit the evidence by its charge, since that would have been a charge on the weight of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    10. Criminal Law (§ .510) — Testimony of Accomplice — Corroboration.
    In a prosecution for offering to bribe a witness, testimony of such witness, alleged to be an accomplice, that defendant, after his indictment, offered to bribe witness not to appear and testify against defendant did not require corroboration.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124-1120; Dec. Dig. § 510.]
    11. Criminal Law (§ 780) — Sufficiency of Evidence — Accomplice’s Testimony.
    A charge is erroneous which only requires testimony of an accomplice to “tend” to connect the defendant with the offense, but a charge must require that the testimony of the accomplice “connect” the person on trial with the offense charged, and not merely “tend to connect.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1863; Dee. Dig. § 780.]
    12. Criminal Law (§ 511) — Sufficiency of Evidence — Corroborative Testimony.
    Corroborative testimony need only “tend to connect” a person on trial with the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1128-1137; Dec. Dig. § 511.]
    Appeal from District Court, Potter County; James N. Browning, Judge.
    Z. Z. Savage was convicted of offering to bribe a witness, and he appeals.
    Reversed and remanded.
    Reeder & Dooley, of Amarillo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was indicted for offering to bribe the witness J. M. Barkley in a case wherein Frank Engman was defendant, charged with violation of the local option law in Potter county.

The indictment charges a conspiracy and acting together between Savage and others. Barkley testified practically that appellant, Thomas, Engman, and Plemons offered to bribe him, as a witness in the case, to disappear from the country and not testify. The indictment alleges also, after setting out the subpoenas alleged to have been served upon Barkley, that they were served by a deputy sheriff named S. D. Riddings. The statement of facts shows that Steve Riddings was introduced as a witness. The only question asked him was as to his name. The contention is made that, inasmuch as the indictment charges that the subpoena was served by S. D. Riddings, the subpoena ought to have been introduced in evidence before the jury, and that proof also should be made that Riddings served the papers as charged. Whether it was necessary or unnecessary to set out the subpoenas in the indictment, and the further fact that S. D. Riddings, as an officer, served the process .upon Barkley as a witness, it should have been proved to meet the allegations in the indictment. The subpoenas were not introduced, nor was S. D. Riddings asked any questions in reference to the matter, so far as the statement of facts is concerned or bill of exceptions. This was error.

The first bill of exceptions recites that the witness Barkley was permitted to testify to a conversation occurring between himself and appellant at the Elks Hotel subsequent to the transaction set out in the indictment, in which he states that appellant offered to pay him some money in connection with this and other cases in which Engman was defendant. Many objections were urged, among others, that it was not res gestee and an independent transaction, and could not be introduced to show system or intent. There are quite a lot of cases cited showing that testimony of this character could not be introduced on the question of system, and also quite a number of cases showing that the testimony, under the facts of this ease, could not be used to show intent on the part of Savage. It could not be introduced for these purposes. If Savage offered to bribe in the manner indicated in the indictment, there was no question of his intent, because the facts shown by the witness made the case complete, so far as his testimony could make it. He says he was offered and received money to absent .himself from the country, and not only so, but did leave, and that Plemons and Scott went with him in the direction of Tucumcari, N. M. He says Plemons bought his ticket from Amarillo to El Paso, and gave him in addition money amounting to thirteen dollars and some cents. If this money was paid to bribe Barkley, there was no issue as to intent. The facts carry the intent with it in the consummation of the act. The subsequent offers to bribe could not be used for that purpose in this case. Extraheous crimes may be used to develop intent or connect the party with the transaction on trial, or to develop the res gestas, or to show system in a proper case. This evidence does not bring the case within any of these rules. It could not be used to corroborate Barkley, because Barkley was an accomplice and could not corroborate himself, and no other witness testified to the fact that the conversation ever occurred. If it was admissible at all, it was upon the theory that the conversation between the defendant and Barkley was with reference to the case here charged. The contention seems to be that this is admissible under the case of Garden v. State, 62 Tex. Cr. R. 545, 138 S. W. 598. The writer, however,’ is of the opinion that the testimony was not admissible under that authority, under the facts of this case. The majority are of the opinion the evidence was admissible.

Another bill recites that O. 6. Thomas, one of the defendants, went before the grand jury and made a written statement in which he exculpated himself entirely from having anything to do with bribery, but made statements criminative of his codefendants. This was made after the transaction was complete on which the indictment was based, and by a party who is charged with the same offense as the alleged co-conspirators. Many objections were urged to this testimony, which ought to have been sustained. It had no place before the jury. The statement of a co-conspirator, inculpating other co-conspirators, made after the transaction, cannot be used in evidence against anybody, except the party making the statement; therefore it could not be used against Savage and Plemons and should not have been admitted. The statement was exculpatory entirely of the maker of the statement, and was an indirect way of getting before the jury the statement of Thomas before the grand jury, stating matters upon which the state sought to make its case against the others; at least the statement of Thomas, if true, was inculpatory of them. The testimony could not thus be used, and was not admissible. We make the further statement that this was original testimony introduced by the state; therefore the question of impeachment does not arise. After the case on the facts was completed, the district judge instructed' the acquittal of Thomas, and then withdrew Thomas’ written statement, above mentioned, from the consideration of the jury. Many opinions have been written, and it would seem like a sufficient number, to the effect that illegitimate testimony cannot be introduced and then controlled by the charge of the court. It being clearly inadmissible against Savage, the instruction of the court, first, that it could only be considered against Thomas, and then subsequently withdrawing it entirely from the jury, did not cure the error. It is of sufficient importance to reverse this judgment. The court makes this statement qualifying the bill:

“The statement complained of in this bill, when admitted in evidence, was admitted solely as to defendant O. G. Thomas, who made the same, and the jury were then specially instructed by the court not to consider it as any evidence and for any purpose as against the other defendants. After the testimony was closed, the court, in the fifth paragraph of his charge, withdrew this statement altogether from the jury.”

The court recognized -by this statement that it was error to introduce this testimony against the other two parties, and that it could only be used against Thomas. It entirely exculpated Thomas.

There are quite a number of exceptions to the court’s charge properly taken before being read to the jury and verified by the district judge. There are quite a number of special requested instructions refused by' the court, which were offered in proper time, as verified' by the judge. All of these questions are properly presented for adjudication. The court submitted the question to the jury as to whether Barkley was an accomplice or not. Appellant insists the court should have instructed the jury positively and directly that Barkley was an accomplice. ■ Under this record, this contention is correct. That Barkley was an accomplice is not a debatable issue under the facts. He testified in substance: That they offered him money to leave the country, going into detail as to the transaction. That Plemons bought the ticket at Amarillo, paying $16.95 for it. That they would carry him in an auto to some point on the railroad leading from Amarillo to El Paso, and pay him in addition $23.05. That they reached the designated point where he was to take the railroad for El Paso, and a controversy ensued between him and Ple-mons as to the amount of money he was to get; Plemons contending that he was to have $10 of the $40 for conveying Barkley to this point on the railroad, and Barkley contending that he was to have the entire $40, resulting, as Barkley says, in his getting $13.45 and the railroad ticket, $16.95, and Plemons retaining $10. He then got into communication with the sheriff at Amarillo over the telephone, who came after him, as well as Plemons and Thomas, who had been in the auto with him to this point. They were all carried back to Amarillo next morning, and this prosecution followed. The evidence is further to the effect, if there was any bribery at all, that he solicited the offer of the bribe, and continuously so until it was offered, and then he accepted it. He testifies: That he was working on this matter in connection with the sheriff’s department, and the district attorney. That he had pleaded guilty to passing what he called “bad checks,’’ and was working at the courthouse paying out a fine. That he had other cases and trouble with the courts, some of which were pending. It is unnecessary to repeat all of the statements showing the relation of this witness to the case. It is useless for the court to assume, under the circumstances and statements as made by this witness, that there was any question or issue as to his being an accomplice. The authorities in Texas are so clear and positive and uncon-tradictory upon this question that it ought not to be debatable. Under this witness’ evidence, he went into a scheme to work up a case against these parties at the beginning in order to get them into trouble, and that, having done so, he accepted the money and railroad ticket and agreed to leave the country, and did start to El Paso, and later on did in another instance leave the country, and he testifies that appellant Savage sent him money to different points in Texas, California, and Arizona to keep him out of the country in the latter instance. There could be no question that Barkley was an accomplice, made so by his own testimony. The court should have instructed the jury positively that he was an accomplice. In this statement we are not going into the defensive side of the evidence. They deny the whole transaction, and say they never paid him any money, and Plemons testified in regard to railroad ticket that Barkley came to him (Plemons) and gave him $20 and asked him when at the depot to buy him a ticket-to El Paso. That Barkley knew and had heard them talking about the fact that he (Ple-mons) and his brother-in-law Thomas were going to Tucumcari, N. M., to sell an automobile, and that they were working on it that particular morning, and Barkley came and asked them to carry him along, which they agreed to do, and he had occasion to go to the depot for some purpose, or at least went to the depot, and Barkley asked him to buy a ticket for him with the $20 given him by Barkley, which he did, and brought him back $3.05. The controversy about the money, when they finally separated after leaving Amarillo, grew out of the fact that he (Ple-mons) had loaned the witness Barkley money theretofore, and in paying him this money he wanted Barkley to pay him what he owed. This Barkley declined to do. So he finally gave Barkley the $3.05, and that was the end of the transaction, from Plemons’ viewpoint. But those are matters it is unnecessary here to discuss.

The question here is the attack on the court’s charge because it failed to instruct the jury that this man Barkley was an accomplice. A discussion of the defendant’s side of the case is unnecessary to an elucidation of that point, as their testimony was purely exonerative. The court should have charged the jury that Barkley was an accomplice. Also, in this connection, the court charged the jury that they could not find the defendants guilty upon Barkley’s testimony, “unless you first believe the testimony of the said J. M. Barkley is true, and that it shows, or tends to show, that the defendants, or some one or more of them, is guilty as charged in the indictment; and still you cannot convict the defendants, or any of them, unless you further believe that there is other evidence in this case, outside of the testimony of said J. M. Barkley, tending to connect the defendants, or some one or more of them, with the commission of the offense charged in the indictment.” There are quite a number of exceptions taken to this charge, which should have been sustained. That portion of the charge given by the court, to the effect that Barkley’s testimony must tend to show that the defendants are guilty, is in contravention of all the decisions, where that question has been adjudicated. Eor collated cases, see Branch’s Criminal Law, § 320. These have been collated so often in the decisions we déem it unnecessary to do more than refer to the cases, as collated by Mr. Branch. The charge is not sufficient when it tells the jury that the evidence of the accomplice must tend or tends to show guilt. The same objection is urged to the general definition of accomplice, as well as in the application of the law to the ease. The objection to the charge just quoted is where the court is applying the law to the case. In the general definition he uses the same language; that is, that the jury must first believe the accomplice’s evidence to be true, and that it shows or tends to show defendant’s guilt. That portion of this charge is also criticized which informs the jury that the accomplice’s testimony would be sufficient if it shows or tends to show that the defendants, or some one or more of them, are guilty as charged. The court nowhere limits the application of the law to the particular defendant whom the jury might find guilty under the circumstances indicated. It would seem from the charge as given, if the jury should find that the accomplice was corroborated, or there was evidence tending to corroborate him, or that his testimony tended to prove guilt, they could find them all guilty, under those circumstances, if the jury should come to the conclusion that some one of them was guilty. Applying the law to the case, after giving the general definition of principals and directing an acquittal as to Thomas, he then instructed the jury that if they should believe, beyond a reasonable doubt, that the defendants Prank Eng-man, Z. Z. Savage, and Bluford Plemons, acting together, on or about the 3d day of April, 1913, unlawfully, willfully, and corruptly offered to bribe the witness J. M. Barkley in the Prank Engman Case, then pending in that court, to disobey subpoena, they would convict. In charge previously quoted, with reference to accomplice testimony, he instructs them that if they should believe the testimony of the accomplice, and that it connected, or tended to connect, the defendants with the case, then they might find all of them guilty. It takes no reasoning to show that this charge is clearly erroneous. The court should have pointedly instructed the jury that they could only convict the man as to whojn they might find the testimony sufficient, and not to convict all of them, unless they found the evidence sufficient as to all of them, and that the accomplice was corroborated as to all of them. This is perhaps a sufficient discussion of the charge on indicated errors. These were pointed out by the defendant, not only in exceptions to the charge before it was read to the jury, but in bills of exceptions, and special charges were asked covering these matters, which were refused by the court.

Another special charge was asked with reference to the transaction that Barkley says occurred between himself and appellant, Savage, at the Elks Hotel. In that conversation Barkley testified that Savage offered him money. They had a controversy as to the amount of it, but finally agreed on something like §1,000, if he would leave the country. He then went into detail as to how the matter was to be handled, and that he did leave the country and went away, and Savage sent him money. The special charge requested in this connection, which was not given by the court, and no similar charge given, is as follows:

“The witness John Barkley testified before you im regard to other transactions with some of the defendants and other alleged offers of bribes. Now, in regard to such other and subsequent transactions, you are instructed that, before you can consider them for any purpose whatever, you must first find from the evidence that such transactions took place, as testified to by Barkley, and further that such transactions in themselves constituted also the offense ‘bribery,’ as that term is defined in the court’s charge, or at least constituted or were an offer to do away with evidence in this case; and unless you do find from the evidence both that such other alleged transactions are true, and also that they constituted such offense, or one of them, you will not consider same for any purpose.”

They also asked special instructions, which were refused, and none of similar import given by the court, that, before the jury could consider the transactions testified to by Barkley subsequent to the filing of the indictment in this case for any purpose, they should find from the evidence that such transactions actually took place as testified to by Barkley, and further that such transactions in themselves constituted also the offense of bribery, or at least constituted an effort to do away with evidence in this case, for the reason that testimony of subsequent transactions to an indictment are in no event legal testimony to be considered by the jury, unless the jury first finds the testimony to be true, and that the transactions actually took place, and that same constituted a penal offense, etc. Other portions of the charge also brought to the attention of the court and asked that the jury be instructed with reference to the corroboration of Barkley in reference to subsequent transactions, upon the theory that Barkley, being an accomplice, could not corroborate himself, not only as to this case, but as to subsequent matters that he testified occurred between himself and other parties. We are of the opinion these charges should have been given, or at least the principle involved in them should have been given, to the jury' fully and fairly. Barkley, being an accomplice, could not corroborate himself by any inculpatory evidence that he might give in connection with bribery. He was a party to it, and organized it from beginning to end, under his own testimony, and whatever other conversation occurred, with reference to the matter, between him and one of the parties, after the alleged design, necessarily implicated Rim as much as it did either of the defendants to whom he may have talked. The jury may have been impressed with the fact that the subsequent statements and conversations were corroborated by reference to the original transaction. Of course the courts and lawyers would not so understand it, but the jurors are not versed in these matters, and this phase of the case should have been carefully guarded, so that the testimony might not be appropriated to an illegal or unlawful purpose.

It is contended the evidence is not sufficient to support the conviction. The writer is disposed to agree with the contention. Barkley made himself a principal in the matter from the beginning. He originated, and helped originate, and brought about the scheme by which he was to' accept the bribe. We are of the opinion that, so far as the facts are concerned, he was not corroborated by any fact or circumstance of sufficient importance to show that appellant, Savage, gave him any money to convey him out of the country in the original transaction. Barkley undertook to so testify, but nobody else does, and the testimony shows that he had $20 with which the ticket was bought, and he did not get it from Savage, and, so far as the testimony goes, no witness shows that Barkley received money from Savage. The writer is not willing to see a man incarcerated in the penitentiary on this character of testimony. That Barkley was an accomplice is shown by his own testimony, and he is not corroborated, so far as I understand the facts, in any manner that would tend to connect appellant with paying him money or running him out of the country.

The judgment is reversed, and the cause remanded.

HARPER, J.

I agree to the reversal of the case on account of the error in the charge on accomplice testimony, wherein the court instructed the jury that if they find that Barkley was an accomplice, and his testimony tended to show the defendant guilty, etc. The other grounds I do not agree to, and will write my views later.

HARPER, J.

(concurring). The indictment was returned by the grand jury, charging appellant, Prank Engman, Bluford Ple-mons, and G. G. Thomas with offering to bribe one J. M. Barkley, who had been summoned to appear as a witness against Prank Engman in a case then pending against him, to leave the state and not appear as a witness against said -Engman. We will not undertake a full statement of the case, as we have concurred in a reversal of the case, but, not agreeing to all the holdings of Judge 'DAVIDSON, we will state our views on such questions.

The record discloses fully that Barkley had been legally and duly summoned as a witness; therefore the failure to introduce the subpcena would not present error. When this fact was testified to by a number of witnesses, and no evidence offered to the contrary, this fact was sufficiently proven.

The testimony of the witness Barkley as to conversations had between him and defendant Savage, at the Elks Hotel, we think admissible, under all the rules of law. In the first place, in cross-examination of Barkley, the defendant brought this matter in the record. The testimony offered by the state in its direct testimony related solely to the offer to bribe, as charged in the indictment, the $40 transaction. On cross-examination of the witness Barkley, the defendant, to destroy his credit as a witness, asked Barkley if he had signed Savage’s name to two checks. Barkley admitted that he had done so. Then the state was permitted to show, on redirect examination of the witness, how he came to sign Savage’s name to these two cheeks, and the witness testified that, after the indictment had been returned charging appellant with the offer to bribe him, Savage came to his room and offered and agreed to pay him $1,000 to leave the state and not appear as a witness against him in this bribery case and other cases pending; that he agreed to accept it, and .did leave the state, and, in accordance with instructions from Savage, had signed appellant’s name to these two checks. This was merely in explanation of why he had signed appellant’s name to the checks, and, as appellant had elicited that fact, it certainly was permissible for the state to show that he had done so by the instructions of the man whose name he signed to the checks.

But the testimony was admissible for another reason and on another ground. Savage had been indicted for an alleged attempt to bribe Barkley. This testimony was in reference to the offer of $1,000 to leave the state and not testify against • him in the bribery case then pending—this case of which he was convicted. It has always been held admissible to show the flight of the person charged with crime, or a tampering with the witnesses for the state by him, as a circumstance tending to show his guilt. As said by Mr. Branch in his work on Criminal Law:

“If defendant authorized or was present when money was offered or paid a witness to leave, or himself attempted to or did tamper with the witness, it is not error to admit proof of such fact.” Branch’s Criminal Law, § 862; Clark v. State, 43 S. W. 522; Ezell v. State, 71 S. W. 283; Booth v. State, 52 Tex. Cr. R. 454, 108 S. W. 687; Parks v. State, 46 Tex. Cr. R. 104, 79 S. W. 301; Wharton’s Crim. Ev. § 923 (10th. Ed.).

The record discloses that C. G. Thomas, was charged, with the others, as a principal. • He had appeared before the grand jury and made a voluntary statement. This was reduced to writing and signed by him. All four defendants elected to be tried at the same time, no severance being requested or demanded, and all four were not only jointly indicted but jointly tried. In making its case, tiie state introduced this voluntary statement of Thomas as evidence tending to show his (Thomas’) guilt; the court stating at the time that it was admitted only as evidence against Thomas, and instructed the jury that it could not be considered as any evidence against the other three defendants. Under- all the authorities, this evidence was clearly admissible against Thomas, who was on trial.

At the close of the testimony, the court did not deem the evidence sufficient to authorize the conviction of Thomas, and withdrew this statement made by Tilomas, and in- ' structed the jury it could not be considered for any purpose. We do not think the record discloses that the district attorney was guilty of improper conduct in the premises. Certainly there is no evidence that he acted in bad faith. Throughout the trial his efforts seem to have been in earnest in an effort to adduce evidence to convict all four defendants, Thomas as well as the others, and if in the opinion of the trial judge, at the close of the testimony, the testimony did not authorize the conviction of Thomas, it does show or tend to show improper conduct on the part of those prosecuting officers. It shows only a difference of opinion as to the strength of the testimony adduced on the trial. Thomas being on trial at the time it was offered, and the testimony, with the other evidence, having a tendency to show his guilt, there was no error in admitting it at the time it was admitted, limited, as it was, by the court.

The opinion of Judge DAVIDSON also holds that the court erred in submitting to the jury the question of whether or not Barkley was an accomplice; that he should have peremptorily instructed them that Barkley was an accomplice. In this I do not concur. By this record it is a question of whether or not Barkley is in law an accomplice, in so far as the $40 transaction is concerned, on which he was being prosecuted in this case. According to this testimony, he was approached by the defendants and offered $40 to leave and not testify against Eng-man, in cases then pending against Engman. That this $40 was put up by Savage, and $30 thereof paid to him by Plemons. He says that, when he was approached with the proposition by the defendants, he reported the matter to the county attorney and the sheriff; that they instructed him to accept the money, and agree to leave, and then to bring the money to them. He says he did at once report the matter to sheriff and-county attorney, delivered the money to them, and the defendants were at once arrested by the sheriff; that he had no idea of leaving or accepting the money, but only took it at the instigation of the officers. If this is true, this did not make him an accomplice in law. This question is discussed by Judge Davidson in Bush v. State, 151 S. W. 554, and the true line of demarcation is there marked out; if one originates the crime or is instrumental in its initiation, even though a detective or other officer, he would be an accomplice; if, however, he is approached, and all his steps are taken with a view of detecting crime, he is not an accomplice to such cx-ime, and we can agree to no other rule. This question was fully discussed in Minter v. State, 159 S. W. 300, and Holmes v. State, 156 S. W. 1172, and authorities collated, and .to which we here refer. Defendants in their testimony do not say they were solicited by Barkley to offer a bribe, but they deny all knowledge of the matter, and certainly Barkley’s testimony and the other testimony does not do more than raise the question that he may have been an accomplice, which question it was proper to submit to the jury for their determination, and this the court did.

Neither do we think the charge of the court is subject to the criticism that, if they should believe one guilty, they must find all the defendants guilty. The court instructed the jury:

“Where several defendants are tried together, as in this case, the jury may convict such of the defendants as they may believe from the evidence, beyond a reasonable doubt, are guilty, and acquit the others.”

The jury, in their verdict, show they so understood the law, for their verdict is:

“We, the jury, find the defendants Bluford Plemons, Prank Engman, and C. G. Thomas not guilty, and find the defendant Z. Z. Savage guilty as charged in the indictment, and assess his punishment at confinement in the penitentiary for two years.”

This’ shows they were not misled; that the court’s charge was clear and explicit enough to let them understand the law in this particular; and certainly such criticism of the charge is not and cannot be justified, when only one out of four defendants is convicted.

Neither do we think any charge was called for as to the transaction at the Elks Hotel. This was as to an attempt to bribe Barkley to leave the state and not testify against these defendants in this case, and as such testimony was admissible, as would be testimony of flight or any other circumstance of tampering with a witness on the issue of guilt, it would have been improper to have sought to limit it in the charge, and such a charge would have been upon the weight of the testimony. The authorities on this question have heretofore herein been cited.

Neither was corroboration necessary as to .the testimony of subsequent transactions to the one on trial, showing a tampering with or offer to bribe a witness not to appear and testify on the trial of this case.

I do not agree that' the testimony does not support the conviction, if there was no error in the trial. As it will be tried again, I will not comment on it, but, if the testimony offered by the state is true, it shows a deliberate effort to bribe Barkley not to axspear and testify against Engman in any case tlien pending against Mm, a payment of $30 for that purpose, and the corroborating' circumstances are sufficient to sustain a conviction.

These are all the questions discussed by Judge DAVIDSON, except the one in which I concur in the opinion that it shows error. I have not discussed the above questions at any great length, but just desired to enter my protest to any such holdings and ruling of law. As to the ground, and the only ground, upon which I concur in the reversal of the case, it is in the charge on accomplice testimony.

The court instructed the jury in this paragraph that if they believed Barkley was an accomplice, and his testimony “tended to connect the defendants with the commission of the offense.” This was error, and it hag been so often so held and pointed out, that it seems strange to us that this error should continue to creep into the record. Appellant, in his objection, specifically pointed out this error in the charge, and it should have been corrected. In the cases of Oates v. State, 51 Tex. Cr. R. 452, 103 S. W. 859, Barrett v. State, 55 Tex. Cr. R. 185, 115 S. W. 1187, Tate v. State, 55 Tex. Cr. R. 399, 116 S. W. 604, Maples v. State, 56 Tex. Cr. R. 99, 119 S. W. 105, and other cases cited in Branch’s Criminal Law, § 320, the rule is stated to be that:

“A charge is error which only requires testimony of an accomplice to ‘tend’ to connect the defendant with the offense. The charge on accomplice must require that the testimony of the accomplice ‘connects’ the person on trial with the offense charged, not merely ‘tend to connect.’ ”

As to the corroborating testimony, this o,nly need “tend to connect” the person on trial with the offense, but the accomplice testimony must show that the defendant was connected with the transaction. We trust this distinction will be understood in the future.

Eor this error in the charge, we agree to a reversal of the case.

PRENDERGAST, P. J., concurs in Judge HARPER’S opinion.  