
    HOWARD v. STATE.
    (No. 6620.)
    (Court of Criminal Appeals of Texas.
    May 31, 1922.)
    •I. Criminal law <§=3419, 420(10) — Hearsay testimony as to statements by accomplice to witness, in defendant’s absence, held inadmissible.
    In murder prosecution, testimony as to statements made to a witness in defendant’s absence by an accomplice who had testified for the state as to the commission of the crime by defendant and others, held not admissible, on theory that such statements tended, to show defendant’s guilt, such testimony being hearsay.
    2. Witnesses <§=>287(4) — Examination of witness, as to whether a certain conversation related to a particular subject, held not to warrant re-examination as to substance of conversation.
    In prosecution for homicide, where witness stated that a person claimed by the state to be an accomplice made a statement to witness about the deceased being killed, his answer on cross-examination that the conversation with the accomplice did not relate only to the whis-ky business, did not warrant redirect examination of witness as to accomplice telling witness that the accomplice, aided by defendant and on-other, had killed deceased, under Code Cr. Proc. 1911, art. 811, providing that, when part of an act or declaration is introduced by one party, any part or all thereof on the same subject may be introduced by the opposite party.
    3. Criminal law <⅞=448(8), 493 — Testimony that witness found blood on a saddle held admissible, and objection that it was not proved to be blood went to weight of evidence.
    In prosecution for .murder, testimony that, witness, who had loaned a saddle to defendant’s1 alleged accomplice the day before the homicide,' had later found a substance thereon resembling blood, held admissible, the objection that .it’ was not shown that the substance was blood going to its weight, and not its admissibility.
    4. Criminal law.@=>475 — Physician’s testimony that substance found on saddle borrowed by defendant’s accomplice before the homicide was blood held admissible.
    In homicide prosecution, where alleged accomplice borrowed a saddle the day before the homicide, physician’s testimony that substance found thereon after, the homicide was blood held admissible.
    5. Criminal law <®=>507(!) — “Accomplice,” within statute requiring corroboration of accomplice’s testimony, defined.
    An accomplice, within Code-Cr. Proc. 1911, art. 801, requiring corroboration of testimony of an accomplice, is a. person who is connected with a crime by unlawful acts, declarations, or admissions, whether antecedent, contemporaneous with, or subsequent to the main act constituting the crime, in view of Pen. Code 1911, art. 86, notwithstanding more technical definition of accomplice contained in Pen. Code 1911, tit. S, c. 2.
    [Ed. Note. — Eor other definitions, see Words and Phrases, Eirst and Second Series, Accomplice.]
    6. Criminal law <§=>507(2) — Witness who claimed he was compelled to assist in concealing- evidence of crime by threats of defendant held “accomplice.”
    In prosecution for murder, witness who aided defendant in concealing the crime held an “accomplice,” within- Code Cr. Proc. 1911, art. 801, requiring corroboration of the testimony of an accomplice, notwithstanding the testimony of such witness that he was compelled to do what he did in the commission of the crime by threats of the defendant and others.
    7. Criminal law <§=>780(2) — Instruction on duress, as applied to whether a witness was an accomplice, held improper.
    In homicide prosecution, in which the testimony of a witness who claimed to have been compelled to aid in the crime by threats of defendant was not 'corroborated, instruction upon theory of duress as to whether such witness was an accomplice held improper, in view of Pen. Code 1911, art. 44.
    8. Criminal law <§=>-511 (I) — Accomplice cannot corroborate himself.
    An accomplice cannot corroborate himself.
    9. Criminal law <§=>507>/2 — Witness cannot, by his own unsupported testimony, prove himself not an accomplice, where other evidence connects him with crime.
    Where evidence connects a witness with the crime, the witness cannot, by his own unsupported testimony that he acted under duress, prove himself not an accomplice, within Code' Cr. Proc. 1911, art. 801, requiring corroboration of the testimony of an accomplice.
    10. Criminal law <§=>51I (l) — Evidence held not to corroborate accomplice.
    In prosecution for murder, evidence held not to corroborate accomplice, as required by Code Cr. Proc. 1911, art. 801.
    Appeal from District Court, Comanche County; J. R. McClellan, Judge.
    
      Gibbs Howard was convicted of murder, and he appeals.
    Reversed and remanded.
    Callaway & Callaway, of Comanche, and Wilkinson & McGaugh, of Brownwood, for appellant.
    J. H. Eidson, Dist. Atty., of Hamilton, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIHORE, J.

Appellant was convicted in the district court of Comanche county of murder, and his punishment fixed at death.

Hollowing the finding on the railroad track of the Frisco Railway, not far from the town of Hasse in Comanche county, on the morning of May 13, 1921, of the dead body of Jack McCurdy, came the indictment and conviction of appellant, one Ed Walker, and W. W. Wilman, for the alleged murder of said McCurdy. The statement of facts in the instant case covers more than 300 pages. We only state enough of the facts to make clear the opinion. From the record we conclude the jury justified in finding that McCurdy came to his death at the hands of some party or parties on the night of May 12, 1921, and that his body was placed on the track of the railroad for the apparent purpose of giving rise to the belief that he was killed by accident. When found the next morning the body was badly broken and mangled, an arm cut off, feet and legs mashed, and other portions of the body scattered along the track for a distance of 50 feet. Little or no blood was found. The practically uninjured boots of deceased were found separated from any portion of the body, but his feet with the socks still on them were badly crushed.

Earl Henry for the state swore that Walker and Wilman killed McCurdy about dark at the home of Wilman, and that witness was present and started to flee, but that appellant, who was present and acting with those just named, shot at him with a pistol and ordered him back. That, after deceased had been beaten to death by Walker and Wilman, witness aided them and appellant to place the body on a quilt and then on a horse ridden by Walker, and that Wilman, riding another horse by the side of that ridden by Walker, between them carried the body to a point near the railroad track where they were met by witness and appellant, who had gone to the place on foot, and the four of them placed the body of deceased on the track. After this was done the boots were removed from the feet of deceased by Wil-man, who put them on and proceeded to make tracks leading from a path up to the’ point where the body was placed, so that it would appear as though deceased had walked up the path and onto the track. The boots were then left near the body.

Henry further stated that the three men then demanded of him that he aid them in every way in concealing the crime and threatened him with dire consequences if he did not say and do all he could to help them in this matter. He testified that he went home after leaving them and there took the spurs of deceased from the horn of his saddle and hid them, and likewise hid parts of a liquor making outfit which had been used by the parties. Henry is shown to have made various statements before the coroner’s inquest and to the grand jury favorable to the accused men, which were explained by him on the witness stand, as well as his other acts favorable to them, on the hypothesis that he feared for his own life. Whether Henry was an accomplice seems to have been considered an issue, but the chief contest was over the corroboration of said witness. For the state it was contended that there was ill feeling on the part of Walker and the others toward-deceased, growing out of illicit liquor transactions, and that the men accused had been concerned in making whisky on premises controlled by the deceased and had been notified by him that this misconduct must stop. It was further shown that deceased had been to Comanche, the county seat, on the day he was killed, and the state claimed that the three accused men believed that he had gone before the grand jury and reported their misdoings in regard to the whisky business.

There seems no contest of the fact that McCurdy and Henry were together in the town of Hasse, a mile or more from where the body was found, until a rather late hour in the afternoon of May 12th. McCurdy lived in Hasse and his business was the management of a large tract of land, principally pasture lands, a short distance from Hasse,-on which land lived Wilman and Henry and which tract nearly surrounded the land on which Walker lived. Appellant also lived in Hasse. It seems not controverted that deceased and Henry left Hasse in the late afternoon of said day, going to the borne of Henry. After their arrival, Mrs. Henry and her sister left the two men there. Later they went to the house of Wilman. From this point the testimony is contradictory. Without going into details, state witness Henry claimed that, soon after he and Mc-Curdy got to Wilman’s house and while they with Wilman were sitting on the edge of the porch, Walker and appellant rode up, one on a black and the other on a gray horse. They dismounted. Almost at once a quarrel -arose over the supposed visit of deceased to the grand jury on that day. Walker and Wil-man assaulted deceased, and Henry says he started to run and that appellant shot at him with a pistol and made him come back, and from that time on until after Henry was arrested and apparently concluded to tell a different story, he seems to have talked, acted, and testified in every way as though neither he nor the other three men knew anything of the killing. Henry’s testimony on the instant trial suggested the theory of duress in regard to such acts and conversation.

The defense was an alibi for appellant and Walker; that they neither saw nor had anything to do with McCurdy that night, and for Wilman essentially the same; the defense witnesses claiming that Henry and deceased were drunk at Wilman’s house and left separately, Henry to go to his house, and deceased to go to Hasse; and that thereafter deceased was,killed by some means unknown to those at Wilman’s. The nearest way from the home of Wilman to Hasse appeared to be up the railroad track. These matters just mentioned appear in the testimony in this case.

By bill of exceptions No. 6, appellant complains that the sheriff and two deputies were permitted to testify that, on or about May 31, 1921, some weeks after the alleged killing and while appellant was in jail, they went with Henry to the place where he claimed the killing occurred, and the hill sets out what they testified that Henry did as follows:

“Showed to each of them and pointed out the place where he, the said Henry, claimed that he and the defendant Gibbs Howard stood and where this defendant and Ed Walker had stood, when, as he claimed, Jack McCurdy was knocked down and killed; and the court permitted each of the said witnesses over defendant’s objections to testify that the said Earl Henry had pointed out to them where he ran before he was shot at by Gibbs Howard, at the time the murder was supposed to have been committed, and the place where he had stopped and turned back when Gibbs Howard shot at him, and the place where he claimed the bullet passed through the trees near him at said time and the place where he claimed that the defendants W. W. Wilman and Ed Walker had rode their horses carrying the body of the deceased to the railroad track; and to testify that the said witness Henry showed and pointed out to them a certain post oak tree or sappling where he told them said horses were tied, and each of said witnesses was permitted to state, over the objections of the defendant, that the said Earl Henry had pointed out to them where he had hidden a certain pair of spurs belonging to the deceased Jack Mc-Curdy, and a certain whisky coil which the witness stated belonged to him and the said Jack McCurdy, and which he had buried; and the court permitted each of the three said witnesses to testify, over defendant’s objections, that they had found the said spurs and the whisky coil buried at the place shown them by the said witness, and had found certain broken twigs where the said witness Earl Henry claimed the bullet had passed through the trees at the time he was shot at.”

This was objected to as hearsay, being out of the presence and hearing of the appellant, who was in jail. The state’s position seems to be that this evidence is in the nature of a confession, or statement while under arrest, which was admissible by reason of its being found to be true, and which conduced to show guilt. In addition to the objections above mentioned, appellant contended that this was an effort to corroborate Henry, by proof of his own hearsay acts and statements. We cannot assent to the application of the rule invoked by the state. The authorities cited in support of admitting the testimony are Kennon v. State, 46 Tex. Cr. R. 359, 82 S. W. 518; Funk v. State, 84 Tex. Cr. R. 402, 208 S. W. 513, and those cases collated on page 37 of Branch’s Ann. P. C. There is nothing in the Kennon Case which, in our opinion, at all supports the state’s contention. Referring to the Funk Case, we think the state misapprehends this authority, and, in view of the fact that it is not stated in the opinion in said ease just what was before the trial court when he permitted the evidence of the sheriff relative to his going to a certain culvert and there finding three pistols, and that this was under the direction of other participants in the homicide than the accused on trial, we have examined anew the record on file in the office of the clerk of this court in said Funk Case, and npw state that the bill of exceptions in that record relating to this particular matter, shows that the sheriff, some time after the homicide, went after two men who were charged with the killing, brought them to San Antonio and placed them in jail. While testifying as a witness on the trial, he was asked: “After talking to them what if anything did, you do?” This was objected to for many and various reasons. The bill shows that, in the colloquy between the trial court and the witness, the court told the sheriff that he must not state anything said by the two men, nor must he state that it was on information that he got said pistols. The witness then testified that, after arriving .at San Antonio with said men, he went to a little bridge north of Brackenridge Park on the road to Wetmore and got these three pistols, which were identified by him. This was the extent of his testimony.

The Funk Case is not to be taken as authority for the introduction' of evidence which is hearsay, for no hearsay evidence was before the court. As rightly understood, said case does not uphold the introduction of the evidence under discussion. Reference to the citation from Mr. Branch’s work discloses only a general statement that a -confession is admissible if, in connection therewith, a statement is made which is found to be true, which conduces to establish guilt. Unless the introduction of the evidence in the instant case can be sustained under some other rule, it must be held inadmissible. If Henry was not implicated in the murder, the testimony of these witnesses that Henry showed them the place where he claimed that he and Gibbs Howard stood or the place thai lie claimed Ed Walker stood when Jack Mc-Curdy was knocked down and killed, or tlie place wkere lie stopped and turned back when Gibbs Howard sliot at liim, or tlie place where be claimed the bullet passed through the trees, or the place where he claimed Wil-man and Walker rode carrying the body of deceased to the railroad track, or to certain trees where he claimed the horses were tied, is necessarily the narration of what they learned from him and purely hearsay. If it be claimed that Henry was so connected with the homicide as to make him have a guilty connection, the evidence under discussion would appear to be obnoxious to the rule which excludes the acts and declarations of coconspirators done or made in the absence of the accused on trial, and after the commission of the offense. It would have been permissible for the officers to testify that they went to Wilman’s house, alone or with Henry, and as to what they saw there or elsewhere, but not to testify in effect to what Henry said about the places and things they saw. Mr. Branch cites many authorities in section 605 of his Annotated P. C., which uphold the ride that acts and declarations of coconspirators after the commission of the crime and out of the presence of the accused are not admissible. We are not aware of any exception to said rule which would admit the testimony under discussion.

Complaint of the testimony as to the surroundings of the Wilman house, including that relative to certain ash piles, would seem groundless, except in so far as the testimony relative thereto embodied statements to the effect that this or the other was showed or pointed out by Henry.

Ed Walker seems to be claimed by the state as the moving spirit in any conspiracy or plot to kill deceased. Evidence tending to show malice or ill will of Walker against deceased would seem to be admissible, but should be properly limited by the court.

John Tyler gave very damaging testimony in the shape of a conversation claimed to have been had with Ed Walker some time after the homicide, in which he said that Walker admitted his own part in the killing and told what Wilman and appellant did at-ibe same time. Appellant’s objection to this would seem sound, unless it became admis-éible under the rule referred to by the trial court in his qualification to the bill of exceptions presenting this complaint. Unless admissible for the reasons there mentioned, this conversation would clearly seem to be the statement of a coconspirator after the conspiracy or plot to kill had been executed, which conversation was out of the presence and hearing of appellant. The trial court, in his qualification to this bill, says that he refused to admit Tyler’s testimony as to the conversation complained of, until after a severe cross-examination by the defense, which was concluded by the following question to said witness: “Is it not a fact that the only thing you and Ed. Walker talked about in that conversation was the whisky business?” To which question Tyler answered, “No,” and the defense asked no further question. It appears from the record that thereupon the state asked the witness to state all of the conversation he had with Walker relative to the killing, and that, over the objection of appellant, he proceeded to do so. In the opinion of the learned trial court this evidence was admissible under article 811 of our Code of Criminal Procedure, which allows, at tlie instance of either party, all of any act, declaration, or conversation relating to a given subject, when the opposite party has put in evidence any part of same. The question thus arises: What conversation relative to the killing of McCurdy did the defense put in evidence by its qudte-tions to this witness? Unless some part of a conversation relating to such killing was so put in evidence, the state would have no right to the remainder. We quote all that part of the cross-examination which relates to any conversation with Walker:

“Ed Walker had told me where this whisky was, and I went and found it and put it back. He told me about this at an automobile right by the hotel over there in Hasse. About the whisky making is not all that Ed Walker told me about. I am not lying about anything I said. I am telling the truth.”

On redirect examination the state asked said witness as follows:

“Q. Mr. Calloway asked you if it was not a' fact that all Ed Walker ever told you was about whisky making and I ask you on direct examination if Walker ever told you anything with'reference to the killing of Jack McCurdy. A. Tes, sir.
“Q. Now, just state the entire conversation you had with Ed Walker, you said that was not all he told you. Now what was it he told you about the murder of Jack McCurdy?”

The witness then told all the purported conversation with Walker, in which was set forth the guilt of this murder, of all three of the men accused. In our view the action of the learned trial court, in admitting that part of said conversation, was erroneous. The defense had not drawn out in evidence any of said conversation relative to the killing of McCurdy. The witness on direct examination said that Walker had made a statement to him about Jack McCurdy being killed, and, on cross-examination, said witness had been asked if the conversation he had with Walker did not relate only to the whisky business, which question he answered in the negative. Did the defense by this question, negatively answered, “put in evidence” any part of said conversation relative to said killing? We are unable to perceive upon what sound theory this claim is based. The mere asking the question, if it was not true that the conversation he had with Walker was only about the whisky business, would not seem to put in evidence any of said conversation which related to subjects other than such whisky business. A. tells B. of a fishing trip on which he and O. raped a woman. O. is tried for the offense of rape. B. is on the witness stand and testifies among other things that A. told him of trouble with the woman. On cross-examination by the defense B. is asked if the conversation he had with A. did not relate solely to fishing, and answers no. Can it be said that the defense thus put in evidence any part of the conversation on the subject of the rape? Not so. In Wood v. State, 80 Tex. Cr. R. 398, 189 S. W. 474, a rape case, the accused placed a witness on the stand who testified on direct examination that he had hugged and kissed prosecutrix while going with her. On cross-examination by the state he was asked if he told appellant about this, which he answered in the negative. Appellant was not allowed to prove what in fact he claimed this witness had told him in regard to this matter. This court approved such refusal. In Irby v. State, 25 Tex. App. 203, 7 S. W. 705, the defense brought out certain parts of a conversation had by a doctor with deceased after the shooting. We quote from the opinion:

“On cross-examination of the witness the state called for and was permitted to prove the statements of deceased, detailing the circumstances of the shooting, as part of the conversation elicited by the defendant as above stated. In this ruling we think the court erred. The question propounded by defendant to his witness Longmire did not call for any conversation with deceased or for any declarations or statements made by deceased in relation to the shooting. It merely called for the reasons upon which the witness based his; opinion that the deceased was not mortally wounded. This testimony was, in our opinion, clearly incompetent and very prejudicial to the defendant.”

In Payne v. State, 85 Tex. Cr. R. 288, 212 S. W. 161, in discussing the limitation on the matters which are legitimate in a somewhat similar case, Judge Davidson ‘says:

“It is a familiar rule, and fixed by statute, that, where a part of a conversation is brought out, and the remaining portion of the conversation is necessary to make the preceding part of the conversation clear, or that it might be explanatory of the preceding part of the conversation, it would be admissible. This redirect examination by the state does not seem to fall within that rule. Appellant had asked nothing that led to the statement either of his wife or his sister-in-law that they desired that the witness should flee the country. It was in no way chargeable to him under the bill of exceptions. It was very damaging testimony, and of a criminative tendency. If appellant had sent his wife or her sister, either or both, to the witness to induce him to leave, or had suggested to them to induce him to leave, it would be a fact against him and introducible; but this bill not only fails to connect him with it, but shows that he knew nothing about it, was not present, and in no way a party to it. It was not germane to that brought out by the defendant from the wife or her sister.”

Article 811, supra, plainly states that, when part of an act or declaration is introduced by one party, any other part or all thereof on the same subject may be introduced by the opposite party. The test is: Is that part offered by the opposite party on the same subject? If not, it is not admissible, even though it be in the same conversation. The state cites only the Kennon and Bunk Oases, supra, and Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087, and in npne of them do we find authority for admitting this evidence. Appellant having elicited no part of the conversation on the subject of the killing, it was material error for the state to introduce same.

Nor do we think it proper for the state to prove by other witnesses that Tyler, while in jail and based on information given him by Ed Walker, made statements or maps and diagrams by means of which said witnesses found certain buried whisky. Walker’s statements to Tyler were hearsay and out of the presence of this appellant, and Tyler’s statements and maps were but added hearsay, and the testimony of the finding of the buried liquor at the place indicated by Tyler, either by word of mouth or map, could only add the dangerous possibility that the jury might mistakenly think this fact corroborative of Tyler in what he said Walker had said to him implicating this appellant.

We perceive no error in allowing the state witness, who had loaned a saddle to Walker the day before the alleged homicide, to testify to the finding of a substance thereon later that resembled blood, nor in admitting the testimony of the physicians who examined said substance, to the effect that, in their opinion, it was blood. That there was no evidence that it was human blood would go to the weight arid not to the admissibility of said testimony.

The court instructed the jury upon the theory of duress as applied and related to whether or not Earl Henry was an accomplice, and, after giving to them a definition of duress, in substance told them, if Henry was-forced and compelled to do what he did in connection with the killing of Mc-Curdy, then he would be guilty of no offense, and would not be an accomplice within the meaning of that term in that portion of the charge defining accomplice testimony. An examination of the record discloses that not only did Henry say that he was present when the killing took place, and that he took compulsory part in the disposition of the body of the deceased, but he also said that, after he left Walker et al. on that fatal night, he went home by himself and there took from the horn of deceased’s saddle his spurs and hid them, and that he then buried machinery used by the various parties connected with this transaction in making liquor, and the next day and on other occasions he repeatedly made statements which he knew were false, for the purpose of concealing the guilt of said parties. All our decisions hold that the word “accomplice” in article 801 of our Code of Criminal Procedure, wherein is the requirement by statute that the testimony of an accomplice be corroborated, is used in a broader sense than the technical meaning attaching to said word in chapter 2 of title 3 of our Penal Code, and that, in this broad or -evidential sense, it includes principals, accessories, coconspirators, ana in fact all persons who are connected with the crime by unlawful acts, declarations, or omissions, whether antecedent, contemporaneous with, or subsequent to the main act constituting the crime. Authorities are too numerous to call for citation. One who knows that a crime has been committed and purposely conceals the offender, or gives him any aid in order that he may evade arrest, trial, or the execution of sentence, is an accessory under article 86 of our Penal Code. In Blakely v. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, it is held that one who falsely gives evidence favorable to one accused of crime with a view of aiding him to evade arrest or punishment, is an accessory and punishable as such. From this record it appears that Henry’s acts and declarations both bring him in the category of persons who aid those actually committing crime to evade arrest and trial. Else why hide incriminating evidence? Why make false statements favorable to such persons before the officers and the grand jury? In the charge of the court defining duress by means ' of threats, the following appears: “The act must be done when the person threatening is actually present.” It could hardly be claimed by the state, in the face of this record, that Earl Henry did no acts, made no false statements, the apparent purpose and effect of which were to aid Walker et al. except when one of the three accused was present. How then could duress arise or find support when these appear to be the facts?

If the principle contained in the court’s charge be sound, said charge was still not applicable because not called for by the facts. If such charge be the law, it should not be given when the undisputed evidence shows acts and declarations of the alleged accomplice out of the presence and hearing of those accused, which acts and declarations would unquestionably bring him within the meaning of an accomplice. None of the authorities cited by the state relate to accomplice witnesses, nor does article 44 of our Penal Code so relate. The state cites Wharton on Homicide, p. 68. The discussion there refers solely to duress as excusing crime, but we observe that, after stating that in order to amount to duress the act or threat must portend immediate injury in the event the party threatened refuses to aid in the criminal enterprise, Mr. Wharton says:

“But, if, after the danger passes, he continues to consent, advise, aid, abet, or assist in such act, he is as guilty as if such danger had never threatened him” — citing Baxter v. People, 8 Ill. (3 Gilman) 368.

Again the learned author says:

“A mere threat to take one’s life, unless he aids in the commission of a homicide, with nothing more, does not amount to a sufficient excuse for committing such homicide.”

Other expressions are to the same effect. If the principle involved in this charge be granted as correct, would we not be confronted with the further anomalous proposition in a case such as the one before us, that here is one who has so connected himself, or been so connected by other evidence, with a crime, as to make him an accomplice. His testimony is therefore tainted by the law. A conviction cannot rest on it alone; yet by his testimony alone he seeks to be extricated from this mire of taint by simply saying that he feared for his life when he acted or made the declaration. Who corroborates him in his testimony cleansing himself? Are we to submit the question based on his unsupported testimony as one of fact to the jury as to whether he acted under duress, and if so that he is not an accomplice? If they convict, then shall we hold that, by such verdict, ipso facto the jury found him to have been under duress and therefore not an accomplice? It is a dangerous doctrine. It is well settled that an accomplice cannot corroborate himself. How then can he extricate himself from the position of such accomplice by his own testimony alone? In Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523, in discussing a kindred question relative to one who acted with others in crime and then claimed that his act was only to detect and punish crime, we said:

“So far as we have observed cases in which the courts have held that one who took part in the commission of the offense was, as a matter of law, not an accomplice witness, they are those cases in which his innocent intent was established by testimony other than his own; cases in which he has in advance made known to others that he planned to act with the real offenders in order to entrap them. Chitister v. State, 33 Texas Crim. Rep. 635; Sanchez v. State, 48 Texas Crim. Rep. 591; Wright v. State, 7 Texas Crim. Rep. 574; Johnson v. State, 3 Texas Crim. Rep. 590; Clay v. State, 40 Texas Crim. Rep. 560; Penn v. State, 43 Texas Crim. Rep. 608; Minter v. State, 70 Texas Crim. Rep. 644.”

In Blakely y. State, 24 Tex. App. 616, 7 S. W. 233, 5 Am. St. Rep. 912, where there was a claim that an accomplice witness was coerced, this court said;

“Now, it is in proof that defendant and these two witnesses were alone present when the matters transpired with regard to the fabricated statement about which they have testified; that is, that he told them what they should swear, and induced them to swear it. In agreeing to do so and in doing so, no matter what the motive, they made themselves accomplices, or particeps eriminis in the offense which was committed by their false testimony. If a witness implicates himself, it is immaterial that he claims to have been coerced. Davis v. State, 2 Texas Ct. App. 588; Freeman v. State, 11 Texas Ct. App. 92.”

In Davis v. State, 2 Tex. App. 603, one Miller turned state’s evidence and tried to exculpate himself by saying that he was compelled by threats against his own life to take part in the crime. This court held that the law of accomplice testimony applied to him and should have been submitted in the charge, notwithstanding such claim on Miller’s part. In our opinion this charge of the court was erroneous as not being applicable to the facts, and its soundness being seriously questionable. The word “accomplice” in an evidential sense is well 'understood, and, if the court submits the definitions of accomplice, principal, and accessory and tells the jury that if in any of these ways the witness knowingly and voluntarily connects himself, or is connected by other evidence, with the commission of the crime in question, he is an accomplice, otherwise he is not, this would seem to us ordinarily sufficient to present the question as to whether he be an accomplice.

Under the testimony in this record, we are much concerned over whether there is such doubt as to Henry being an accomplice as to permit the question to be submitted to the jury. If Blakely v. State, supra, wherein it was held that one who falsely gives evidence favorable to one who has committed a crime with a view of aiding him or assisting him to evade punishment or arrest, or obtain a lighter punishment, is an accessory and punishable as such, is sound, this would seem to apply to Henry. That at some stage in the instant transaction Henry did give false testimony favorable to these men and did do acts apparently in aid of them in their absence, seems beyond dispute. That he was not under legal duress as defined by the learned trial judge at such times would also seem equally clear.

The question that has given us most concern in this case is the sufficiency of the testimony to corroborate the witness Henry. Aside from his statement of appellant’s connection with the case, we have found difficulty in finding what there is in this record which to the unbiased mind connects or tends to connect Howard with the killing. In view of another trial we* forbear expressing opinion as to concrete facts in evidence, but it must be borne in mind that it is not enough that the state show facts whose tendency is to corroborate an accomplice in showing that a crime has been committed, but such facts must further point to the accused as a guilty participant. Eliminating from its consideration the testimony of Henry, the fair mind must be able to find in the record other evidence which leads to the belief in some degree that McCurdy’s death was brought about by this appellant acting alone or with other parties. This is the plain requirement which our lawmakers have written into the statute in article 801, Code Cr. Proe., and we must obey and follow its mandates, .however atrocious and fearful may be the crime whose story is laid before us. This court knows no other guide to its action than the law as written and understood by us.

Without further discussion of the facts, and for the reasons above stated, the judgment of the trial court will be reversed, and the cause remanded. 
      <§=>For other cases see same topic and KEY-NUMBER id all Kéy-Númbered Digests and Indexes
     