
    HENDERSON v. STATE.
    (No. 7124.)
    (Court of Criminal Appeals of Texas.
    Oct. 10, 1923.
    On Rehearing, April 9, 1924.)
    1. Indictment and information <®=»I7I— Sub-, stantial correspondence between charge and proof only necessary.
    Substantial correspondence between allegation of an offense and proof of same is all that is necessary, unless alleged variance be calculated to so mislead accused that he could not reasonably know ,from pleading what he would be called upon to meet.
    2. Robbery ¡5&wkey;26 — Directed verdict on ground of variance between pleading and proof held properly denied.
    Where allegation was that defendant by force took a diamond stud from prosecuting witness and one witness spoke of article taken as a pin, held, there was at most but a question for jury as to whether property taken was a pin or stud and that directed verdict on ground of variance was properly denied.
    3. Criminal law <&wkey;424(l) — Acts of coconspir-ator held not to have occurred after consummation of conspiracy so as to be inadmissible to prove it.
    Where alleged accomplice testified that he was to share in booty of robbery, alleged testimony of third person that alleged accomplice was looking for defendant after robbery but before accomplice knew any booty had been obtained, and that he turned pale when accused of robbery, held not inadmissible to show alleged conspiracy on ground that it related to acts after its consummation.
    4. Criminal law <&wkey;>675 — Alleged accomplice’s admission of participation in offense does not render .other evidence establishing same inadmissible.
    Evidence of circumstances, admissible on behalf of state to prove an acting together by defendant and another in alleged offense, is not rendered inadmissible by fact that defendant’s alleged accomplice has turned state’s evidence and admitted his participation.
    @c»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      On Motion for Rehearing.
    5. Criminal law &wkey;780(3) — Charge on accomplice testimony held erroneous.
    In a ease in which alleged accomplice did not testify to a complete offense, an instruction on accomplice testimony, “You are charged * * * is an accomplice. Now, you cannot convict the defendant upon his testimony alone, unless, * * * ” held, prejudicially erroneous for use of word “alone” and for failure to conclude with requirement that jury must believe from all the evidence beyond reasonable doubt that defendant was guilty before conviction was warranted.
    <§r»For other cases see same topic and KEY-NUMBER in all Key-Numbered. Digests and Indexes
    Appeal from District Court, Bell County; M. B. Blair, Judge.
    Will Henderson was convicted of robbery, and he appeals.
    Reversed and remanded.
    Ed. Heinsohn and Evetts & White, all of Temple, and F. M. Fitzpatrick, of Waco, for appellant.
    A. 11. Curtis, DeWitt Bowner, and W. W. Hair, all of Temple, Few Brewster, Dist. Atty., of Belton, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Bell county of robbery, and his punishment fixed at five years in the penitentiary.

We have looked over all the errors raised in the transcript on behalf of appellant, but consider worthy of discussion only the two that are briefed by his attorneys.

Appellant was indicted for robbery, it being charged that he took by force from prosecuting witness Roddy a diamond stud. In Roddy’s testimony he spoke of the stolen property as a diamond pin in some places, and also spoke of it as a diamond stud. Asked specifically on cross-examination he said:

“It was not a stud that screwed into the tie, but it was on a pin and was a diamond stick pin.”

Other witnesses spoke of it as a stud. The court below instructed the jury that unless they believed from the evidence beyond a reasonable doubt that the defendant took from Roddy the. diamond stud as charged in the indictment they should acquit him.

Motion for an instructed verdict because the proof of the identification of the property varied from the allegation was denied, and this is here presented vigorously as cause, for reversal. Many authorities are cited in support of the proposition that descriptives in the state’s pleadings must be met by exact proof or the conviction will not stand. Substantial correspondence is all that is necessary unless the alleged variance be calculated to so mislead the accused as that he could not reasonably know from the pleading of the state what he would be called on to meet. If there be any difference between a stud and a pin, it is not made to appear from testimony of dealers or experts or' those who might be in position to know, Whether a pin is a stud, or vice versa, does mot seem to have called for any expression at the hands of the makers of dictionaries or law text-writers. In Webster’s 'International Dictionary, under the word “stud,” we find the following among other definitions:

“(3) A kind of nail with a large head, used chiefly for ornament; an ornamental knob; a boss. (4) An ornamental button of various forms, worn in a shirt front, collar, wristband, or the like, not sewed in place, but inserted through a buttonhole or eyelet, and transferable. (5) A short rod or pin, fixed in and projecting from something, and sometimes forming a journal.”

Whether the property taken was a pin or a stud, even if there be any difference between the two, was a question of fact for the jury, and the testimony concerning same making it appear that the article was called by the witnesses both a stud and a pin, we would uphold the refusal of the trial court for an instructed verdict based on the variance. However, we seriously doubt there being support of any claim o’f variance. In People v. Nolan, 250 Ill. 351, 95 N. E. 140, 34 L. R. A. (N. S.) 301, Ann. Cas. 1912B, 401, the Supreme Court of Illinois said that the description of the property as a pin was no variance, from proof that it was a diamond stud — a stud solitaire with a screw or spiral. In Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548, we held proof of theft of diamond rings not a variance from an allegation of theft of diamonds. As far as our information goes a pin and a stud each seem an ornament attached to clothing, and whether the attachment be a spiral wire, a curved wire or a straight wire would seem to constitute very little difference. The case at ‘bar differs from the case of State v. Plant, 209 Mo. 307, 107 S. W. 1070, cited by appellant, wherein the court held that an allegation of theft of a diamond ring was not met by proof of the taking of a diamond stud. When three witnesses in this record speak of the article as a stud and only one calls it a pin, this court could not safely hold this sufficient support of a motion for an instructed verdict on the ground of variance.

The state’s theory in this case was that one J. H. Estes and appellant acted together in robbing Roddy. Estes turned state’s evidence and testified that, pursuant to an agreement and conspiracy between himself -and appellant, the assault and robbery took place. lie further said that appellant was to take charge of any booty obtained and afterwards divide with him.

By a bill of exceptions appellant complains of the admission of testimony from one Bums to the effect that on the morning after the alleged robbery he saw Estes at the Y. M. C. A. in Temple, Tex. That haying seen in the papers that Roddy had been robbed, he made a remark to Estes in effect, “What in the hell did you want to high-jack Roddy last night for?” and that Estes turned with a pale complexion and said to witness, “Have you seen the call hoy?” to which witness replied, “No, I am looking for him myself,” and that Estes then said: “Do you know where Bill Henderson went? Do you know whether Bill Henderson went out on the South local this morning?”. And that he then asked Estes what he was doing, laying off or taking a vacation for Christmas, and that Estes turned and walked out. ■ This appellant objected to as being acts and declarations of Estes after the consummation of the conspiracy and out of the presence and hearing of appellant. We do not agree to the proposition that the conspiracy had been consummated. Its object and purpose evidently was to secure ownership and possession of the diamond belonging to Mr. Roddy, and Estes did not then know, according to his testimony, whether appellant had secured any diamond by the assault on Roddy or not. Sapp v. State, 87 Tex. Cr. R. 606, 223 S. W. 459. The acting together of Estes and of appellant being a pertinent fact for the state to prove, it was not bound in its proof by Estes’ testimony to the effect that he and appellant were acting together. The state might go outside of and beyond the testimony of Estes and show in any other legitimate way that it could the acting together of said partios. If the state was relying upon circumstances to show that Estes and appellant wore acting together, it could hardly be called in question that it might prove, prior to the consummation of the conspiracy, that Estes was searching for appellant or that Estes turned pale when charged with having been a party to the robbery. What-' ever circumstances would be admissible as a part of the state’s legitimate proof of an acting together between Estes and appellant in any case would still be admissible even though Estes had turned state’s evidence and admitted his participation in the affair.

Deeming appellant’s contentions without merit, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Our attention is directed to some matters which were not discussed in the original opinion, only one of which, however, will be considered. It is asserted that the charge upon accomplice tes--timony is erroneous. Timely exception was presented thereto, one particular objection being to the use of the'word “alone” as intimating that the accomplice testimony only might be sufficient to warrant a conviction, the other objection being that the charge is not a pertinent application of the law of accomplice testimony under the facts of this case. Upon original submission the importance of - this assignment escaped us. The charge criticized is in the following' language:

“You are charged that the witness J. H. Estes is an accomplice. Now, you cannot convict the defendant upon his testimony alone, unless you first ‘ believe that his testimony is true and shows that the defendant is guilty as 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 testimony, tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense.”

In lieu of the charge given, the following special charge was requested and refused.

“A conviction cannot be had upon the' testimony of an accomplice unless the jury first believe that the accomplice’s evidence is true and that it shows the defendant is guilty of the offense charged against him, and even then you cannot convict unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission. You are charged that the witness J. H. Estes was an accomplice, if any offense was committed, and you are instructed that you cannot find the defendant guilty upon his testimony unless you first believe that the testimony of said Estes is true and that it shows the defendant is guilty as charged in the indictment; and even then you cannot convict the defendant unless you further believe that there is other evidence in the ease, outside the evidence of the said Estes, tending to connect the defendant with the commission of the offense charged in the indictment, and then, from all the evidence, you must believe beyond a reasonable doubt that the defendant is guilty.”

The requested charge was evidently copied from Brown v. State, 57 Tex. Cr. R. 570, 124 S. W. 101, as the language is identical. Where appropriate (that is, where the accomplice testimony, if true, does show a completed offense, and defendant’s guilt thereof), the charge approved in the Brown Case, supra, has never been criticized so far as we know. The concluding words in that charge, “and then from all the evidence, you must believe beyond a reasonable doubt that the defendant is guilty,” was appropriate and should have been included in the charge in the instant case; but both the charge given and the one refused are in our judgment defective and misleading wherein they tell the jury that they cannot convict upon the testimony of the accomplice Estes unless they believe his testimony is true, and “that it shows the defendant is guilty as charged in the indictment.” Before discussing this particular phase of the charge, we advert to the criticism for using the word “alone.” A charge upon accomplice testimony should never be so framed as to intimate to the jury that under any circumstances a conviction may be had solely upon the testimony of an accomplice, for as was said in Abbott’s Case (Tex. Cr. App.) 250 S. W. 188:

“It is plain that the jury should never be told that they can convict on the testimony of the accomplice ‘alone,’ for this is just what they cannot do under our statute.’ Article 801, C. C. P.

The use of the word “alone” in a charge upon this subject is not proper, but rather the avoidance of its use is recommended.

The charge criticized tells the jury that they cannot convict upon Estes’ testimony alone, unless the jury first believe that his testimony is true and shows that the defendant is guilty as charged, etc. The applicability of this instruction can only be measured by the facts in this particular case. Estes had testified that he and appellant had entered into an agreement to rob O. Roddy; that they had attempted to do so on one or two occasions but had failed to meet him; that on Thursday night, December 22, 1921, they went to his house, where they waited until he and his son drove up in their car; that he (Estes) held a gun on the son when he stepped out of the ear, and that appellant presented his gun on C. Roddy, who commenced to holloa; that he saw appellant raise his arm as if to strike O. Roddy over the head; that the gun was discharged and that he (Estes) ran; that he did'not know whether appellant secured the diamond stud or not; that he never saw appellant any more until Saturday night, when appellant denied having obtained it.

It will be seen from this statement that Estes did not make out a complete case against appellant because he did not know whether a robbery was in fact effected. His evidence went no further than to make out an attempt to commit the crime of robbery. Estes’ testimony, fif true, fails to show guilt because he does not claim to know whether any robbery was in fact committed. O. Rod-dy had known appellant for eight years or more, the latter being a customer of Roddy. Roddy testified that he was hit several times over the head with a pistol and that quite a struggle occurred between him and his assailant over the diamond stud. He did not attempt to identify appellant, as the robber had on a mask, but only went far enough to say that appellant corresponded in size with the man who assaulted him. Now, under this state of facts, let us look to the charge given on accomplice testimony. The jury may have believed Estes’ testimony to be true, and they may also have believed that it showed appellant to be guilty of robbery; but, regardless of what they believed about the matter, his evidence fell short of showing that appellant was guilty, because his evidence under the law does not make out a case of robbery, and yet the jury are instructed that if there is other testimony corroborative of Estes’ which tends to connect appellant with the offense committed, a conviction might follow. The corroborative testimony under this charge might tend to connect appellant with the commission of the offense just as Estes’ testimony might sharply connect him with it, and yet there be lacking evidence showing appellant’s guilt beyond a reasonable doubt. The charge in the Oates Case, 67 Tex. Cr. R. 497, 149 S. W. 1194, eliminating the objectionable word “alone” therefrom, is more applicable in our opinion than the charge used in the present instance. In the Oates Case the accomplice did not testify to a complete offense, but did testify to facts which it was necessary for the state to establish in order to make out the guilt of Oates. The charge in that case appears to have been framed relative to that particular phase of the evidence. It also concludes with the same words fohnd in the charge copied from the Brown Case, supra. It is impossible for this court to lay down any form of charge on accomplice testimony which will be appropriate in every instance, as the correctness of a charge must depend upon the facts of the particular ease. So much confusion arose with reference to charges upon this subject that this court at one time attempted to formulate a charge (see Campbell v. State, 57 Tex. Cr. R. 301, 123 S. W. 583), but it was never accepted by the bar as announcing a correct principle ot law and has been justly criticized by Mr. Branch on page 363, section 709, of his Ann. Pen. Code, for the reasons there stated by him. Convictions have been upheld where the charge in the Campbell Case was used, but usually for reasons peculiar to that particular case. See Watson v. State, 90 Tex. Cr. R. 576, 237 S. W. 298; Walker v. State, 94 Tex. Cr. R. 653. Por a general discussion of such charges and what they should contain and what should be eliminated therefrom, we refer to Standfield v. State, 87 Tex. Cr. R. 437, 208 S. W. 538.

We have reached the conclusion on more deliberate consideration that the charge complained of was not appropriate in the present case, and under the facts are not able to say it may not have been hurtful.

The order of affirmance is set aside, the judgment is reversed, and the cause remanded. 
      
       252 S. W. 543.
     