
    TOWNSEND v. STATE.
    (No. 6496.)
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1921.
    On Motion for Rehearing, Jan. 11, 1922.)
    1. Criminal law <@=51 I (2) — Evidence of accomplices against accused must be corroborated by evidence connecting accused with crime.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. 801, no matter how much' credence the jury may give to the testimony of an accomplice or any number of accomplices, the accused cannot be convicted on such testimony unless there is corroborative evidence which in and of itself tends to connect the accused with the commission of the crime, and the corroboration is not sufficient if it merely shows that a crime has been committed.
    2. Criminal law <@=>51 I (!) — Evidence held insufficient to corroborate testimony of accomplices.
    In a prosecution for selling intoxicating liquor, evidence held insufficient to corroborate the testimony by the accomplices of accused against him.
    On Motion for Rehearing.
    3.Criminal law <@=3510 — Accomplices’ testimony of corpus delicti must be corroborated.
    Where an offense is proved by accomplices, under Vernon’s Ann. Code Or. Proc. 1916, art. 801, a conviction cannot be sustained unless the accomplice testimony of the corpus delicti is corroborated.
    Appeal from District Court, Smith County; J. R. Warren, Judge.
    Cecil Townsend was convicted of selling intoxicating liquor in violation of the Dean Law, and he appeals.
    Reversed and remanded.
    Gentry & Gentry, of Tyler, for appellant.
    Brady P. Gentry, Co. Atty., of Tyler, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORiE, J.

Appellant was convicted in the district court of Smith county of selling intoxicating liquor in violation of the Dean Law. (Laws 1919 [1st and 2d called Sess.] c. 78), and his punishment fixed at confinement in the penitentiary for two years.

We do not deem it necessary to discuss any question save that of the sufficiency of the evidence. The conviction rested largely upon the testimony of certain witnesses who purchased the alleged liquor, and therefore were accomplices. These parties said they saw appellant on the street and made arrangements with him to get them some whisky, and that later he came to an appointed place in a Studebaker car, and that one of thcyn went to said car and got from appellant a fruit jar containing the liquor. It is statutory that, no matter how much credence the jury may give to the testimony of one who is an accomplice, or to any number who are accomplices, the accused cannot be convicted on such testimony unless there be corroborative evidence which in and of itself tends to connect the accused with the commission of the crime, and the corroboration is not sufficient if it merely shows that a crime has been committed. Article 801, Vernon’s O. C. P. In testing the sufficiency of evidence offered as such corroboration, resort has often been had to a consideration of such evidence alone in order to see if there be in it any fact which tends to point to the accused as the criminal. Roach v. State, 8 Tex. App. 478; Welden v. State, 10 Tex. App. 400; Blakely v. State, 24 Tex. App. 625, 7 S. W. 233, 5 Am. St. Rep. 912; Chandler v. State, 230 S. W. 1000.

Applying this rule, we find that the evidence aside from that of the accomplices shows that on the night of March 11, 1921, some one drove a Studebaker car, No. 600237, up to a point in the city of Tyler near a Eord car, and that George Davis, one of the accomplice witnesses, went from the Eord car to the Studebaker, and that some one in the Studebaker car gave him a package; that the Studebaker car, No: 500237, belonged to appellant’s brother, and that appellant drove that car more frequently than any one else. No one identified the driver of the Studebaker car or suggested that it was appellant. No description was given of the man driving it. It is shown that others drove said car. We confess our inability to see in this any fact which would fairly tend to point out appellant as having committed the crime of selling intoxicating liquor. Chandler v. State, 230 S. W. 1000, 1001.

Because of the insufficiency of the testimony to corroborate that of the accomplices, the judgment will be reversed, and the cause remanded.

On Motion for Rehearing.

MORROW, P. J.

The offense is proved by accomplices. The conviction cannot be sustained unless: (a) The accomplice testimony of the corpus delicti is corroborated; and (b) there is other testimony tending to connect the appellant with the commission of the offense. Crowell v. State, 24 Tex.App. 410, 6 S. W. 318; Hanson v. State, 27 Tex. App. 140, 11 S. W. 37; Truelove v. State, 44 Tex. Cr. R. 289, 71 S. W. 601; Ruling Case Law, vol. 1, p. 169; Slaughter v. State, 86 Tex. Cr. R. 527, 218 S. W. 767.

To corroborate the accomplices to the point that the offense was committed by some one is the testimony of the nonaccomplice witness that he saw a package containing a fruit jar delivered to the accomplices in a manner and at a time and place coinciding with their testimony. The contents of the package were unknown to the nonaccomplice witness.

If it be assumed that the corroboration was sufficient to establish the fact that the offense was committed, the question remains:

“Did the corroborating evidence meet the demand of the statute requiring that the corroboration tend to connect the accused with the commission of the offense?”

Upon the identity of the appellant as the person who delivered the package to the prosecuting witness the evidence is circumstantial.

To the inquiry of the alleged purchaser whether appellant knew where he could get whisky, he replied that he did not. Appellant’s brother owned a Studebaker automobile which was used as a service car and generally driven by the appellant, though sometimes by the brother. A few minutes after talking to the alleged purchaser, appellant talked to over the telephone and went in the car mentioned with another person to the fair grounds, reappearing at the place where the ear usually stood about forty minutes later. At some time between 8 and 10 o’clock, a state’s witness, other than the accomplice, saw some person sitting on the driver’s seat in the Studebaker automobile of the number and make of that belonging to appellant’s brother and deliver a package to the alleged purchaser of the whisky. The identity of the appellant as such person was essential to the state’s case. Admittedly appellant’s brother owned and sometimes drove the car. The corroborating witness does not assume to say that on the occasion mentioned the appellant was driving it nor does he state that the person who delivered the package was alone in the car. The car was used for carrying passengers, and, so far as the evidence reveals, the one who delivered the package may have been a passenger or appellant’s brother.

To meet the measure of the law, it is necessary, on the present record, that the evidence exclude to a moral certainty the theory that the person delivering the package was other than the appellant.

The motion is overruled. 
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