
    SPEARS v. STATE.
    (No. 9412.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.)
    Criminal law &wkey;s780(3), 1172(2) — Instruction warranting conviction on testimony of accomplice alone, if corroborated by other testimony, held error.
    In prosecution for abortion, an instruction that defendant cannot be convicted upon testimony of accomplice unless jury further believes that there is other testimony in the case,' corroborative of accomplice’s testimony, connecting defendant with offense charged, held, erroneous and prejudicial, where testimony of accomplice, even if true, did not make out a complete case against defendant.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Glover Spears was convicted of an offense, and he appeals.
    Reversed and remanded.
    Adams, Gilmore & Perkins and Pollard, Fisher & Gaines, all of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat. Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

The state’s case consisted of the testimony of Mrs. Lauraine, her husband, and two doctors. The husband tes-/ tilled that he made the arrangements with appellant to produce an abortion upon his wife, and that he accompanied her to the building, went with her home after she came downstairs, and to her (Condition then and thereafter. Mrs. Lauraine testified that she went to appellant’s office, and that he placed her on a table, made an examination, and then inserted into her womb an instrument, following which she felt sharp pains and there began a flow of blood. No one testified to the loss or expulsion of any foetus, or in effect or substance that the act of appellant caused the loss of same. True, Dr. Gerson testified that, in his opinion, from an examination he made, there had been an abortion, but the facts testified to by him as sustaining this opinion do not appear to us to be very satisfactory. He said that be. examined tbe woman shortly after tbe time of tbe alleged abortion and found a stinking discharge coming from her womb. Other witnesses, who were at tbe office of appellant at tbe time of the alleged abortion, and who were shown to have bad an opportunity to form an opinion as a basis for their testimony, said that tbe woman was passing a stinking discharge at the time she was in appellant’s office on tbe.occasion of the alleged abortion, Tbe state’s case does not seem to rest on very conclusive testimony, and in this state of tbe case the matter of the complaint of the court’s charge on accomplice testimony seems well founded.

The court instructed tbe jury that the husband was an accomplice, and in reference to this matter gave the following charge:

“I instruct you that the witness W. V. Lauraine, Jr., is an accomplice. • Now, you cannot convict the defendant upon his testimony unless you first believe that his testimony is true and connects the defendant with the offense charged, and then you cannot convict the defendant upon said testimony unless you further believe that there is other testimony in the case, corroborative of the accomplice’s, connecting the defendant with the offense charged; and the corroboration is not sufficient if it merely shows the commission of the offense charged.”

An appropriate exception was taken to this charge, and in our opinion the complaint is well founded. The quoted part of tbe court’s charge seems more objectionable than the charge in Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583, which has been criticized by this court. Abbott v. State, 94 Tex. Cr. R. 31, 250 S. W. 188; Anderson v. State, 95 Tex. Cr. R. 346, 254 S. W. 989. An analysis of the charge complained of in the instant- case makes evident the proposition that if tbe jury believed the testimony of the husband, an accomplice, to be true, .and that there was other evidence aside from bis in any wise connecting the accused with the offense charged, the jury would be justified in a verdict of conviction. This could be absolutely true in no case except one in which the testimony of the accomplice made out a complete case in itself. If the testimony of an accomplice supplied all of the facts necessary to the conclusion of guilt, so that there was left only the necessity for corroboration of tbe character required by our statute, there might' be less doubt of the propriety of such a charge, though we have fears as to the correctness of the giving of a charge in any case which instructs the jury that if they believe the testimony of any witness is true, they may convict if they believe other specified testimony is present. This smacks tremendously of a charge on the weight of the evidence. However, in the instant case, the testimony of the accomplice, even though true, does not make out a case against the appellant. We think tbe charge given defective anfo. hurtful to thq rights of tbe accused. We have suggested before that, in connection with a proper charge on accomplice testimony, it is well for the court in every ease to instruct the jury that they must believe from all the evidence that the accused is guilty beyond a reasonable doubt.

There are other complaints, none of which we believe to be of serious character.

The judgment will be reversed and the cause remanded. 
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