
    WILLMAN v. STATE.
    (No. 8462.) 
    
    (Court of Criminal Appeals of Texas.
    June 25, 1924.
    Rehearing Denied Feb. 25, 1925.)
    On Motion for Rehearing.
    1. Criminal law <®=>511(2) — Sufficiency of corroboration of accomplice must be determined by facts of each ease.
    Vernon’s Ann. Cr. Code Proe. 1916, art. 801, merely provides that there must be testimony other than that of accomplice which tends to connect accused with commission of the offense, and in last analysis sufficiency of corroboration must be determined by facts of each case.
    2. Criminal law <8=35(1(2) — Evidehce held to corroborate testimony of accomplice and to-sustain conviction of murder.
    Evidence held sufficient to corroborate testimony of accomplice, and to sustain conviction of murder, as against contention that deceased was run over by railroad train.
    Appeal. from District Court, Hamilton County; J. R. McClellan, Judge.
    W. W. Willman was convicted of murder, and he appeals.
    Affirmed.
    Callaway & Callaway, of Comanche, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
    
      
      Second rehearing denied 269 S. W. 801.
    
   LATTIMORE, J.

Appellant was convicted in the district court of Hamilton county of murder, and his punishment fixed at 65 years in the penitentiary.

This is the third time this case has been before us. Appellant and two others were charged with the murder of Jack MeOurdy in Comanche county, Tex., in 1921. The parties charged were tried separately thereafter and convicted, and all the cases upon appeal were reversed. See Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739; Willman v. State, 92 Tex. Cr. R. 77, 242 S. W. 746; Walker v. State, 92 Tex. Cr. R. 296, 242 S. W. 749. The parties were again tried, convicted, and upon appeal the cases were again reversed. See 94 Tex. Cr. R. 653, 252 S. W. 543.

We have gone over the various errors assigned relating to the rejection of special charges and argument of counsel and each other matter complained of, as carefully as we can, and, without setting same out or discussing them at length, are of opinion that none of them present any reversible error. The chief contention made on this appeal is that the evidence does not sufficiently support the verdict. This matter has been considered each time the cases have been before us. The facts have been substantially the same on each trial. Upon the last appeal, above referred to, the presiding judge of this court, speaking for the court, states:

“The record supports the finding by the jury from evidence independent of that of Henry of certain circumstances which are relied upon to corroborate.”

The court then sets out at length a number of such corroborative circumstances. In summing up this feature of the case we s^d in that opinion:

“No effort has been made to state all of the testimony, nor to particularize all of the facts relied upon as corroborative of Henry. While many of the circumstances are controverted, the truth of them was for the jury, and, if found to be true, they may reveal facts independent of the testimony of Henry, sufficient to support the jury’s finding that they tended to connect the appellant with the commission of the offense.”

The facts in these cases have been separately reviewed by the different members of this court upon the various appeals, and no great good could be accomplished by restating them. According to the testimony of the accomplice Henry, the deceased was killed at the home, of this appellant, by one Ed Walker-, who, with appellant, was holding deceased at the time. Said witness testified in detail to the manner of the killing and to the fact that thereafter the body was placed upon a horse upon which Ed Walker rode and beside which appellant rode on another horse and that they thus carried the body to a point near the track of the Fort Worth & Rio Grande Railroad upon which it was deposited by the joint efforts of appellant, Walker, Howard, and witness. Witness also detailed the manner in which he and deceased had gone to the home of appellant on that night and stated that he returned from the home of appellant to his own home after the homicide and after the body was disposed of. He denied taking any active part in the killing of deceased, and claimed that he tried to make his escape from the place after deceased was assaulted and stricken down, and averred that he was shot at by Howard and that a woman screamed at the house about the time of the shooting. The tracks of deceased and accomplice witness Henry were observed going from Henry’s house to appellant’s house, and the tracks of two horses going side by side were found going from appellant’s house to a point near the railroad track. The track of Henry alone was also discovered going back from appellant’s house to the home of Henry. About dark bn the evening of the homicide a shot and a scream of a worn an were heard by parties who lived in a general westerly direction from appellant and Henry. Said parties were of opinion at the time that the shot and sound came from the direction of the home of witness Henry, which lay east of south from them. Appellant’s home was south of east from the same place. Other circumstances appear in evidence which are set out somewhat in detail in the case of Walker v. State, reported in 252 S. W. above referred to. The master has been in bur books quite often, and for further statement of the facts reference is made to the former appeals. We have carefully weighed and analyzed, as best we can, the facts in evidence relied on as tending to corroborate the testimony of the accomplice Henry, and we are not willing to hold that the evidence is insufficient to justify the jury in concluding that the accomplice was legally corroborated.

This being the chief question before us, and being unable to agree with appellant’s contention in such regard, an affirmance will be ordered.

On Motion for Rehearing.

By an extended motion and oral argument appellant vigorously attacks the correctness of our affirmance of this case, and seeks a rehearing mainly upon the proposition that the evidence is not sufficient to corroborate the accomplice Henry. Former opinions of this court relative to these cases are referred to by appellant and contrasted, it being insisted that in Howard’s Case, 92 Tex. Cr. R. 221, 242 S. W. 739, this court expressed, doubt of the sufficiency of the corroborating testimony, which appellant insists is the correct attitude for this court to now assume in this case, and we are criticized for what was said by us in Walker et al. v. State, 94 Tex. Cr. R. 653, 252 S. W. 543, in which we said:

“The record supports the finding by the jury from evidence independent of that of Henry of certain circumstances which are relied upon to corroborate.”

Before proceeding to discuss the facts relied on by us to sustain our conclusion in the instant case, it may be well to call attention to some of the facts that were before the court when the opinion in Walker ét al. v. State, supra, was written. It is also stated in the opinion in that case that:

“No effort has been made to state all of the testimony, nor to particularize all of the facts relied upon as corroborative of Henry. While many of the circumstances are controverted, the truth of them was for the jury, and, if found to be true, they may reveal facts independent of the testimony of Henry, sufficient to support the jury’s finding that they tended to connect the appellants with the commission of the offense. It is not upon one circumstance alone that reliance is had, but the cumulative weight of a series of circumstances, and it is in this light that the sufficiency of the evidence must be judged.”

From the record in the case of Walker et al., supra, it appears that Mrs. WiUman, the wife of this appellant, took the stand and testified, as did also Gibbs Howard, a co-defendant with this appellant, and Howard’s wife. Erom these witnesses it was elicited that the appellants and Henry were associates and coprincipals in the illicit manufacture of whisky, and that this was known to deceased. It was shown that the grand jury was in session, and that the deceased, together with Henry, Walker, WiUman, and Howard were all at the home of appellant on the evening of the alleged homicide. The testimony for the defense in the case of Walker et al. v. State, supra, was offered in support of the proposition that deceased left the home of appellant alone for the purpose of going to Hasse, where he lived, going in a direction that would take him to the railroad track down which led the nearest way from the home of Willman to the town of Hasse, and that a short time after he left Willman’s house the noise of a passing train was heard. The theory of the appellants throughout all of the eases has been that deceased came to his death by being run over by a railroad train, and that he was not murdered and his body placed on the railroad track, as contended by the state, and testified to by the accomplice Henry.

It might be stated in this connection that this court has never doubted the proposition that there was abundant evidence to show-satisfactorily that McOurdy was killed and his body placed upon the railroad track after his death. Being satisfied on this point, and the testimony offered by the defense, as well as that by the state, fixing the presence of deceased at the home of appellant on . the evening of May 12, 1921, and also fixing the presence there of the three men who are now charged with the murder of McCurdy, and these facts being further attended and surrounded by other circumstances which were not discussed, showing that a murder was committed at the home of WiUman on said night, it appeared to us, as stated in substance by Judge Morrow in the opinion in Walker et al. v. State, supra, that the evidence was sufficient to corroborate that of the accomplice Henry.

Reverting to the facts in the record before us, and discussing them with a view of a decision of the question as to the sufficiency of the testimony to corroborate the accomplice Henry, which wiU be the only question discussed, the others raised in the motion not being deemed sufficient to call for the granting of the motion or to require discussion, we observe: Henry says the murder was committed about night on May 12, 1921, at appellant’s house by appellant and Ed Walker, Howard being present and participating, one of whom held deceased while the other struck him three blows, .two on the head and one in the face, with something picked up by Walker. This took place in appellant’s yard. Is there corroboration of accomplice Henry on this ®oint?

Mrs. Henry and her sister testified that they left the Henry home in, the afternoon of May 12th, leaving Henry and deceased alone there. Appellant’s house was a few hundred yards south of that of- Henry. A number of witnesses establish the fact that deceased wore boots. By outside witnesses it was shown that tracks of a boot-shod man and a shoe-shod man walking together were found the next morning leading from Henry’s house to that of appellant. Henry swore that he and deceased walked together in the late afternoon of the 12th from his house to that of appellant. He said that after the homicide he returned alone to his house. The outside witnesses also testified to the track of the shoe-shod man alone returning from appellant’s house to that of Henry. This would tend to corroborate Henry in stating that he and deceased went to the house of appellant that afternoon. Henry said that when appellant and Walker knocked deceased in the head, one of the women at the house screamed and that he, Henry, started to run, and Howard, a codefendant of appellant, shot at him. Mr. Newby, and his daughter lived in a westerly direction from Henry and a northwesterly direction from appellant’s house. The distance from each place to New-by’s was approximately the same. About the same time of day fixed by Henry as that of the scream and shot, Newby and his daughter testified that they heard a woman scream and a gun fire, and thought it to be in the direction of Henry’s house. The entire evidence affirmatively establishes the fact that at that time there was no woman at Henry’s house, and that the only two comparatively nearby houses east or southeast from Newby’s were those of Henry and appellant. This tends to corroborate Henry’s story that there was a scream and a gun fire at appellant’s home about the time of the homicide. Henry swore that there were three bloody places in appellant’s yard where the killing took place. He also testified he went back afterward with the officers, and that upon each place where the blood had been in the yard there were piles of ashes. The outside witnesses swore that they found the three piles of ashes in appellant's yard; that the remainder of the yard was clay and very hard; onie witness saying as hard as flint; under the ashes also the witnesses found the ground to be moist and soft and penetrable by a spade. This tends to corroborate Henry’s testimony that there were thitee spots of blood in the yard.

Henry swore that after he and deceased got to appellant’s house on the 12th, Walker and Howard, codefendants with appellant, rode up, one riding a black and the other a gray roach mane horse. A bay and a sorrel horse were tied to a nearby wagon. Before Walker and Howard' came, deceased accused appellant of pasturing on him, which appellant denied. Shortly after Walker and Howard came words arose between Walker and deceased because of a supposed visit of deceased to the grand jury that day, and appellant and Walker attacked deceased. It was in testimony that Walker and Howard were at the town of Hasse, a short distance from appellant’s home, between sundown and dark that same afternoon, inquiring for deceased, and that, as they rode away, Walker was heard to say that if he found deceased nobody else would ever see him alive. A witness said that Walker and Howard were riding, one a black horse and the other a gray roach mane horse. It was shown that the track of this gray horse had a noticeable peculiarity. Henry, swore that after deceased was killed by Walker and appellant, they wrapped his body in a quilt, Walker got on one of the horses and the body was placed on the saddle before him, and that appellant got on the other horse, and, holding the feet of the deceased, they rode away in the direction of the railroad track. By outside witnesses-it was in testimony that the next morning after the body of deceased was found on the .railroad track, a place was observed near some elm bushes, 20 or 30 steps from the place where the body was supposed to have been put on the track, and two horses were back tracked from there to a point just west of appellant’s house, the two horses coming from the direction of appellant’s house toward the railroad track .side by side. One of the tracks exhibited the peculiarity of the gray horse above mentioned. Other witnesses, who tracked the horses away .from the vicinity where | the body was found on the railroad, said they went in the direction of appellant’s house, and one witness said he tracked them to appellant’s barn. This tended to corroborate Henry’s testimony that the murder was committed at appellant’s house, and the body was placed on one of the horses, and that ■ another man riding side by side with it went from appellant’s home to a point near the railroad track and that there the body was placed on the track 'and left.

Henry testified that when Walker and appellant left with the body on horseback, he and Howard walked up to the railroad track and then assisted in carrying the body and placing it on , the track. He said that appellant removed the boots from the body and put them on his own feet and went away saying that he was going to make tracks along the railroad as though deceased had walked along the track, and presently came back saying that he had made the tracks. The boots were then deposited on the railroad track not far from the body. It was in testimony that boot tracks were observed on the railroad track. When the body was found the feet and lower limbs were crushed and mangled. The boots of deceased were off the body and had no flesh or blood on or in them, and were not cut or broken. Henry testified that when they left the body and started back, Walker and appellant told him and Howard they would meet them at Willman’s barn. This was the point to which the horse tracks went as testified to by other witnesses. It was also shown that Walker borrowed a saddle the afternoon of the alleged homicide. When the owner got it back afterward, there was on it a dark discoloration which a doctor said he believed to be blood.

Our statutory declaration (article 801, Vernon’s O. O. P.) as to the amount of corroboration .necessary in case the state relies on accomplice testimony, is that there must be testimony other than that of the accomplice which tends to connect the accused with the commission of the offense. No rule has been laid down attempting to define the exact amount of testimony, nor to specify or enumerate facts which would be deemed enough or not enough to satisfy the statutory demand. Our lawmakers contented themselves by saying that in such case there must be some evidence other than that of the accomplice tending to connect the accused with the offense, and in its last analysis the sufficiency of the corroboration must be determined by the facts of each case. Boone v. State, 90 Tex. Cr. R. 374, 235 S. W. 580.

Taking all of the circumstances in this case together, and bearing in, mind the further pertinent circumstance that it was shown that both Mrs. Willman and Mrs. Howard were present, and that no member of appellant’s family was placed upon the stand to deny or combat any of the facts or circumstances put in evidence by tbe state, or to explain any of tbe criminating evidence against appellant, we are of tbe opinion that tbe evidence in this case is sufficiently strong to meet tbe demand of our statute, and to tend to connect appellant with tbe commission of this crime. Henry says it was committed in appellant’s yard, and certainly there are numerous circumstances tending to show deceased alive at appellant’s place, and none supporting tbe theory that be left there except after be was murdered, as testified to by Henry. That a man was murdered in tbe yard of another who offers and attempts no sort of explanation, when such explanation would be available by witnesses other than himself, would seem of itself to tend, at least, to connect him with such crime. As stated above, we have little doubt as to the proposition that the body of deceased was lifeless . when placed on the railroad tract. The testimony is from numbers of witnesses and abundant bn this point. We have not attempted here to set out in detail all of the facts relied on, but have set out what are deemed enough to justify our conclusion.

The motion for rehearing will be overruled. 
      <®^>For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
     