
    DURHAM v. STATE.
    (No. 10512.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1927.)
    1. Criminal law <g=^511 (2) — Testimony of accomplice held not sufficiently corroborated to connect defendant with offense (Code Cr. Proe. 1925, art. 718).
    In prosecution for possessing liquor for sale, conviction based on testimony of accomplice should be reversed, under Code Cr. Proe. 1925, art. 718, evidence merely showing defendant was about to climb into another’s car loaded with liquor being insufficient corroboration of accomplice’s testimony.
    2. Criminal law <⅜=>511(2) — Corroboration of accomplice is sufficient when evidence, independent of that of accomplice, tends to connect defendant with offense.
    If there is evidence of incriminating character, independent of evidence given by accomplice, which tends to connect defendant With commission of offense, corroboration of accomplice is sufficient, otherwise not.
    3. Criminal law @^721½(2) — Argument concerning -defendant’s failure to prove he was not with admitted liquor possessor held error (Code Cr. Proe. 1925, art. 7Í0).
    Argument of state, indicating that conviction was sought more because defendant in prosecution'for possessing liquor for sale failed to call witnesses to prove he was not with admitted possessor of liquor, held error, in view of Code Cr. Proe. 1925, art. 710, forbidding allusion to failure to offer defensive testimony.
    Appeal from District Court,"Jones County ; Bruce W. Bryant, Judge.
    W. H. Durham was convicted of possessing intoxicating liquor for purpose of sale, and he appeals.
    Reversed and remanded.
    Murchison & Davis, of Haskell, for appellant.
    , Sam D. Stinson, State’s Atty., of Austin, and Robt M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale, punishment being one year in^the penitentiary

Only two witnesses testified, Johnson, the officer who arrested appellant, and Smith, an admitted accomplice. The point is made that the accomplice witness was not sufficiently corroborated to permit the conviction to stand, in view, of article 718 of our Cdde of Criminal Procedure (1925 Rev.), which positively denies. a conviction “upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed,” and which further provides that “the corroboration is not sufficient -if it merely shows the commission of the offense,” but it must tend to connect accused with its commission.

The test as to the sufficiency of the corroboration, long recognized as correct by our court, is to eliminate from the case the evidence of the accomplice, and then examine the evidence of the other witnesses with the view to ascertain if there be inculpatory evidence ; that is, evidence of incriminating character which tends to connect the defendant with the commission of the offense; if there is, the corrdboration is sufficient, otherwise, not. Welden v. State, 10 Tex. App. 400; Boone v. State, 90 Tex. Cr. R. 874, 235 S. W. 580; Jones v. State, 59 Tex. Cr. R. 559, 129 S. W. 1118. Applying this test to the present case, we look first to the evidence of Johnson, remembering that the charge sought to be proved against accused was that he was in possession of intoxicating liquor for the purpose of selling it. Johnson testified as follows:

“I am city marshal at Hamlin. * * * I know the defendant. * * * I arrested him in the town of Hamlin on or about the 17th day of December, 1925. I arrested somebody in company with him, Chester Smith. They were in a Chevrolet touring car. As to whether I saw the defendant in that car, he started to get in the ear, his foot was in, partly, he was pulling up to get in the car. His foot was on the running board. I didn’t kno-w at that time whose car it was. I afterwards found out it was Mr. Smith’s car. ’ Chester Smith was in the car. * ⅜ * Prior to the time I arrested him, I saw some whisky in the car; I believe 'there was 17 quarts of it. * * * I saw about -a half a quart of liquor laying on the back seat and one empty jar, and there was two fruit jar cases setting between the seats.”

This is all the testimony aside from that of the accomplice. If the officer had seen appellant in the car prior to that time he does not say so. Whether appellant lived in Hamlin or elsewhere does not appear from his evidence. If appellant did anything in, about, or in connection with the ear or its contents which was observed by the officer, it was not related. All the information his evidence gave the jury was that Smith was in his own car, which contained 17 quarts of whisky, and appellant was seen with his foot on the running board, apparently about to get in the car. Does this evidence tend to show that he wa^ in possession of the whisky, intending to sell it with any more probative force than it tends to show he was present at the car with intent to purchase whisky? What criminative fact does it establish? If Johnson could see the whisky, then it would be fair to infer that appellant could also see it, but what relation to it appellant sustained the officer’s evidence, does not tend to show'.

The witness Smith makes out a case, claiming that he and appellant purchased the whisky in an adjoining county and engaged in the joint enterprise of bringing it to Hamlin for sale, and were to divide the profits. The accomplice may be telling the truth about the matter; if so, it is unfortunate for the state that it could not bring corroborative evidence to support him in compliance with the statute.

Four bills of exception complain of argument as being an allusion to appellant’s failure to testify in contravention of article 710, O. O. P. (1925 Rev.). The argument complained of rather indicates that the state was seeking a conviction more because appellant failed to call witnesses to prove he was not with Smith than upon the evidence the state had produced. The testimony does not disclose any witness who was in a position to explain appellant’s whereabouts during the time the accomplice claims they were acting together in relation to the whisky save appellant himself, and, while the argument is adroit, it is difficult to escape the conclusion that its effect, if not its purpose, vas to direct the jury’s attention to the failure of accused to explain his whereabouts. What has been heretofore said in Gothard v. State, 99 Tex. Cr. R. 452, 270 S. W. 177, is repeated, in view of the frequency of this matter coming before us for review:

“Article 790, C. O. P. Tnow article 710], gives the defendant the right to testify in his own behalf in any criminal cause, but if he does not it forbids allusion thereto or comments thereon to be made by counsel. The result of a violation of this statute in argument is well known. A statute operating for the benefit of accused is entitled to the same respect as one for the benefit of the state, and there is no way to enforce respect for and obedience to it other than to reverse a judgment of conviction which follows a violation of this plain mandatory provision of the law. Notwithstanding the many judgments this court has been called upon to reverse by reason of counsel ignoring the statute under consideration the Legislature up to the present time has not seen proper to modify or -repeal it. We think it not out of place to suggest that in cases like this where a defendant has not testified himself nor offered any defensive testimony whatever it would be well for counsel representing the state'to confine himself to a discussion of the evidence introduced by the state, and not allude to defendant’s failure to produce evidence unless it is apparent from the record that evidence other than his own was available which he neglected to bring before the jury.”

The judgment must be reversed and the cause remanded. 
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