
    MELTON v. STATE.
    (No. 5082.)
    (Court of Criminal Appeals of Texas.
    Dec. 18, 1918.)
    Criminal Law ®=511(1, 10) — Accomplices— COBBOBORATION.
    In view of statute as to required proof, conviction of perjury cannot be sustained upon testimony of two accomplices, or upon the testimony of one credible witness and one accomplice.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    S. E. Melton was convicted of perjury, and appeals.
    Reversed and remanded.
    See, also, 197 S. W. 715.
    X. W. Holmes, of Plainview, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appeal is from a con-; vietion of perjury.

Appellant testified before the grand jury that he had not played cards in Hale county since January 1, 1916, and had not seen others do so.

To establish the falsity .of this testimony, the state relied on the evidence given by the witnesses Cox and Patrick, each of whom testified that he had played a game of cards with appellant in Hale county since January 1, 1916, and prior to the time appellant gave his evidence before the grand jury. The cross-examination of these witnesses developed facts from which the jury might have concluded that they entered into a conspiracy with appellant to commit perjury in suppressing the facts in regard to the game of cards mentioned. This evidence was held, in the former appeal of this case, to justify the inference that they were accomplices. Melton v. State, 197 S. W. 715.

The court instructed the jury that if they believed that both of these witnesses were accomplices, to acquit appellant, and, if they found one of them to be an accomplice and | the other not one, then before they could convict they must find the false statement has been established by one credible witness and strongly corroborated by other evidence. The correctness of this instruction was challenged on the ground that it was an indication that there was other evidence sufficient to corroborate an accomplice, and, because there was an absence of such other corroborating testimony, a special charge was also requested to the effect that corroboration could not be supplied by an accomplice, but that it must come from other sources.

In perjury the statute requires that the proof of the falsity of the statement declared on must be established by two credible witnesses, or by one such witness strongly corroborated by other evidence. This statute has been construed to differ from the general statute requiring corroboration of an accomplice’s testimony, in that in such statute it is required only that the corroborating evidence “tend” to connect the accused with the commission of the offense, while in the statute on perjury there must be, either two credible witnesses, or evidence equivalent thereto. This may be supplied by circumstances coming from credible or strongly corroborated witnesses; but it cannot be supplied by one credible witness and one who is not a credible witness, such as an accomplice. Grady v. State, 49 Tex. Cr. R. 3, 90 S. W. 38; Beach v. State, 32 Tex. Cr. R. 204, 22 S. W. 976; Branch’s An. P. C. § 851.

In the record before us, we fail to find other evidence of the falsity of the evidence given by appellant before the grand jury than that of Cox and Patrick. If these witnesses were believed by the jury to be accomplices, the appellant, under the record, should have been acquitted; and, if one of them be an accomplice, a like result should follow, upon another trial, unless there be further testimony which would corroborate that of the accomplice.

The third and fifth paragraphs of the charge are subject to criticisms, which, while possibly not such as to require reversal, are such as will doubtless be avoided in the event of another trial.

The bills relating to the manner in which the indictment was presented, we think, are without ‘ merit. The statute seems to have been complied with. Vernon’s C. C. P. art. 451, note p. 193.' If the minutes required correction, the record authorized the entry nunc.pro tunc.

The matters presented in the other bills are not such as require discussion, as they relate to incidents of the trial not likely to occur again.

The error pointed out requires a reversal of the judgment, which is ordered.

Reversed and remanded.

PPJDNDERGAST, J.

I am in doubt on the question on which a reversal is ordered, and express no opinion. 
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