
    LONG v. STATE.
    (Court of Criminal Appeals of Texas.
    June 7, 1911.)
    1. Ckiminal Law (§780) — Testimony of Accomplice — Instructions.
    Where the state has introduced the testimony of an accomplice in a criminal prosecution, an instruction that the witness was an accomplice, and that before the jury could consider his testimony, for the purpose of showing or “tending” to showJ th? guilt of defendant, they must first find that such testimony was true, and that it had been corroborated by the testimony .of other witnesses in the case “as to matters, if any, connecting the defendant with the facts proved,” is erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1859-1S63; Dec. Dig. § 780.]
    2. Criminal Law (§ 1097) — Appeal and Error — Record—Failure to Make Statements oe Fact.
    Where an objection is taken to a positive error in a charge as to the testimony and corroboration of an accomplice shown to have testified in the case, and a bill of exceptions to the charge is allowed, the case will be reversed, although there is no statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862-2947; Dec. Dig. § 1097.]
    Appeal from District Court, Tarrant County; W. T. Simmons, Judge.
    Herschel Long, alias Taylor, was eonvmted of burglary, and he appeals.
    Reversed and remanded.
    C. E. Lane, 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
    
   PRENDERGAST, J.

The appellant was indicted and convicted of burglary, and his penalty fixed at two years’ confinement in the State Institution for the Training of Juveniles.

There is no statement of facts in the record, but there is a bill of exception properly taken and allowed to the charge of the court on the subject of accomplice. The charge is as follows: “An accomplice is one who participates in the commission of an offense, or has knowledge of the same, either before, at the time, or subsequent to the commission of the offense, and assists the one committing the offense, either in the commission of the offense or in avoiding arrest or prosecution after same has been committed. You are instructed that Luther Deyo is an accomplice in this case, and before you can consider, for the purpose of showing or tending to show the guilt of the defendant, the testimony of the said Luther Deyo, must first find that said testimony is true, and, further, that, the same has been corroborated by the testimony of other witnesses in this case as to matters, if any, connecting the defendant with the facts proved.”

This was the only charge given by the court on the subject. The appellant not only made his objections to this charge at the time it was given, and was allowed his bill of exception thereto by the judge, but makes it one of the grounds of his motion for a new trial, which was overruled. Such charge as this has been uniformly condemned by this court, and cases wherein it was given reversed uniformly. Fruger v. State, 56 Tex. Cr. R. 393, 120 S. W. 197, and cases therein cited; Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583. In this last case a form for such charge was specifically laid down and approved on this subject. We cannot understand how the trial judges will commit such errors under the circumstances.

Ordinarily, where there is no statement of facts, errors in charges are not so presented as this court must necessarily reverse; but, where a positive error is committed by the court in its charge, such as was committed in this case, and the matter is called to his attention at the time, and a bill of exception is taken thereto, and shown as in this case, such error must necessarily reverse it. In the cases where the court has refused to reverse when there was no statement of facts, the record was such that we could presume that there was a state of facts proven before the jury which were applicable to tbe charge given; but in this case it is shown that the accomplice did testify, and the charge of the court complained of, being positive error, could not be properly applicable to any state of facts that would authorize us to affirm the case.

The judgment is therefore reversed, and the cause is remanded.  