
    GRANT v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 23. 1910.)
    1. Criminal Law (§ 780) — Instructions — Evidence oe Accomplice.
    A charge that a conviction could not be-had upon the testimony of an accomplice unless, the jury believed that his testimony was true, and that it showed or tended to show that accused was guilty of the charge, and unless they further believed that there was other evidence-outside the testimony of the accomplice tending to connect accused with the commission of the-offense, was erroneous; it being necessary that the evidence show beyond a reasonable doubt that accused was guilty of the charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§.1859-1863; Dec. Dig. § 780.]
    2. Criminal Law (§ 1172) — Murder—Instructions.
    That the testimony of an accomplice comprised within itself every fact essential to con-yiction would not cure the error in an instruction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3154^-3163; Dec. Dig. § 1172.]
    3. Homicide (§ 308) — Murder—Instructions.
    A charge that, if one in the perpetration of or in the attempt to perpetrate a robbery upon another shall tahe the life of such other, he shall be guilty of murder, and that a murder committed under such circumstances is per se murder of the first degree, was erroneous as authorizing a conviction for murder in the first degree without finding the existence of malice.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 642-648; Dee. Dig. § 308.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Sam Grant was convicted of murder, and he appeals.
    Reversed and remanded.
    J. R. Stubblefield, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
    
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RAMSEY, J.

On January 17th of this year appellant was indicted by the grand jury of Eastland county charged with the murder of one Oats. The case came to trial soon thereafter, and on the 10th day of February following, on a verdict finding him guilty of murder in the first degree-and assessing his punishment at death, judgment was accordingly entered in the trial court.

The appeal was duly perfected, and the case comes to this court for revision on 49 different assignments of error, many of which were elaborately briefed by counsel for appellant. Some of these questions, which, occupy much space in the record, relate to the action of the court taken in respect to the special venire, its service, qualification, and similar matters, but in view of the fact that the case will be reversed upon other grounds, and since these matters are not at all likely to occur on another trial, it seems unnecessary to take time to review them.

1. Many other questions relate to the admission of evidence which we have examined, and an inspection of the record has not constrained us to believe that any of them are well taken. We think, however, the charge of the court in at least one respect is under the settled rules of this state erroneous, and for this error the judgment of conviction must be set aside. The witness Bert Garter who was, under all the testimony, an accomplice, testified that on the morning of the 17th day of February, 1909, he was at the home of appellant, where he'saw an old man whose name was shown to be Oats, who left appellant’s home on that day going south on the public road in the direction of what is known as the Okra schoolhouse; that they followed him until he went into the home of one Olevy Cozort, where he stopped for the night; that he and appellant had followed him because they thought he was a detective, and that after leaving him at Gozort’s house, and after they had started home, they agreed to follow him the next day and kill him for his money, and that, in pursuance of this agreement, they did on the following day, February 18, 1909, follow him, and when near the Okra schoolhouse in Eastland county they intercepted him, and that appellant shot him and took from his person $18.35 in money, which they divided; that only one shot was fired, and this by appellant. The testimony of Garter was savagely assailed. It was shown that he had been charged with offenses involving moral turpitude, and that he had turned state’s evidence under agreement of immunity. A singular circumstance also was shown in that the body of Oats seems to have been struck by bullets in the face, and also almost squarely -in the back, which it would seem would have been impossible if only one shot was fired. A number of parties saw Garter and appellant together the evening before the killing, and corroborated Carter in respect to a number of happenings which transpired on that day. There was some corroboration of Carter’s testimony showing appellant with Garter on the day of the killing, and not far from the scene of the homicide, armed with a gun, and stalking through the country. This was not so direct, however, as that the jury necessarily would have connected him with the transaction.

In this state of the record the court, among other things, charged the jury as follows: “I charge you that the witness Bert Garter is an accomplice. A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. You are instructed that you cannot find the defendant guilty upon the said Bert Garter’s testimony unless you first believe that the testimony of said Bert Garter is true, and that it shows, or tends to show, that the defendant is guilty as charged in the indictment, and unless you further believe that there is other evidence in the case, outside the testimony of the said Bert Garter, tending to connect the defendant with the commission of the offense charged.” Almost this precise charge has been many times condemned by this court. It was excepted to, and its accuracy questioned in motion for new trial for the following reasons, among others: “Said charge of the court was erroneous for the further reason that it authorized the conviction of the defendant upon the testimony of an accomplice, if the said testimony of such accomplice tended, to show that the defendant commited the offense charged, provided the said accomplice was corroborated by other evidence tending to connect the defendant with the commission of the said offense, Whereas under the law the evidence must go further, and show, beyond a reasonable doubt, that the defendant is guilty of the charge, contained in the indictment.” So that there can be no doubt that the matter is so presented, if appellant’s contention is correct, ■as to be made here available as ground of reversal. The authorities holding this charge erroneous are unbroken in this state since the case of Bell v. State, 39 Tex. Cr. R. 677, 47 S. W. 1010. See Fruger v. State, 56 Tex. Cr. R. 393, 120 S. W. 197; Maples v. State, 56 Tex. Cr. R. 99, 119 S. W. 105; Early v. State, 56 Tex. Cr. R. 61, 118 S. W. 1036; Tims v. State, 130 S. W. 1003; Fruger v. State, 50 Tex. Cr. R. 621, 99 S. W. 1014; Jones v. State, 44 Tex. Cr. R. 557, 72 S. W. 845; Garlas v. State, 48 Tex. Cr. R. 449, 88 S. W. 345; Hart v. State, 47 Tex. Cr. R. 156, 82 S. W. 652; Crenshaw v. State, 48 Tex. Cr. R. 77, 85 S. W. 1147; Washington v. State, 47. Tex. Cr. R. 131, 82 S. W. 653; Barton v. State, 49 Tex. Cr. R. 121, 90 S. W. 877; Oates v. State, 50 Tex. Cr. R. 39, 95 S. W. 105; Dixon v. State, 90 S. W. 878; Morawitz v. State, 49 Tex. Cr. R. 366, 91 S. W. 227; Reagan v. State, 49 Tex. Cr. R. 443, 93 S. W. 733; Oates v. State, 48 Tex. Cr. R. 131, 86 S. W. 769; Barrett v. State, 55 Tex. Cr. R. 182, 115 S. W. 1187; Newman v. State, 55 Tex. Cr. R. 273, 116 S. W. 577; Tate v. State, 55 Tex. Cr. R. 397, 116 S. W. 604.

Nor do we think that the ingenious argument of our able Assistant Attorney General is correct that, since in this case the testimony of the accomplice comprises within itself every fact essential to conviction, the charge should therefore be sustained. That this consideration would have weight with a legal mind trained in weighing testimony and construing charges may be true, but we doubt if the average jury would so interpret and consider the case. In this connection we call attention to the fact that, in view of the large number of reversals on account of charges similar to this, in the-case of Campbell v. State, 57 Tex. Cr. R. 301, 123 S. W. 583, we laid down a form of charge on the subject of accomplice testimony for the use of the trial courts. Attention is also called to the fact that In the case of Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101, and in the case of King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135, we approved certain charges on the subject of accomplice testimony which are quoted at length in these opinions. We beg to commend these forms to trial courts.

2. Again, complaint is made of the following portion of the court’s charge: “If any person in the perpetration or in the attempt to perpetrate a robbery upon another shall take the life of such other, he shall be deemed guilty of murder, and a murder committed under such circumstances is per se murder of the first degree.” This charge was objected to, and is questioned on the ground that it authorizes a conviction for murder in the first degree without finding the existence of malice. This identical charge, with the exception of the words “per se,” was condemned by this court in the case of Oates v. State, 51 Tex. Cr. R. 449, 103 S. W. 859, where Judge Davidson, speaking for the court, says ¡.“Upon another trial, if thought necessary to give a charge • upon this subject, it should be framed in accordance with the statute, which provides that all murder committed in the perpetration of robbery is murder in the first degree. To plainly state it, if a homicide is committed upon malice aforethought, it would be murder in the first degree if committed in the perpetration of robbery. All killing is not murder, and, unless the killing amounts to murder in the first or second degree, it would not justify a conviction for that high grade of punishment when committed in the perpetration of robbery. This charge authorizes the jury to convict appellant for murder in the first degree if a killing was done in the perpetration or in an attempt to perpetrate a robbery. The vice in this charge is that it authorizes a conviction for the killing in the absence of malice. This is not the law in Texas. We deem it unnecessary to discuss this question from the standpoint of the authorities. The decisions are numerous.” See Pharr v. State, 7 Tex. App. 472. Whatever doubt I might have personally in respect to this charge, I would long hesitate in a case of a death penalty to place my views in opposition to the opinion of the court holding the charge erroneous. Under the authorities, it is clear that the charge is erroneous, and it must be conceded that, if this is true, it should and would operate as a reversible error.

There are some other matters. complained of in the charge of the court and in reference to requested charges. We think, taking the charge of the court as a whole, that there is no other error contained in it for which the case ought to be reversed, and that the matters covered by the special charges requested, except in the matter of the instruction on accomplice testimony, were sufficiently covered by the court’s charge.

For the error pointed out, the judgment is reversed, and the cause is remanded.  