Maulding v. State

108 S.W. 1182, 53 Tex. Crim. 220, 1908 Tex. Crim. App. LEXIS 178

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 1908
• Docket: No. 4073.
• Status: Published

Opinion

BBOOKS, Judge.

Appellant was convicted of embezzlement of a horse, and his punishment assessed at five years confinement in the penitentiary.

Appellant was convicted under the third count of the indictment, which contained a charge of embezzlement under article 938, of the 'Penal Code. The court did not charge on embezzlement at all, but, on the contrary, only charged the law of theft by conversion under article 877, of the Penal Code. This was error. See Burke v. State, 50 Texas Crim. Rep., 185; 16 Texas Ct. Rep., 582, and Pearce v. State, 50 Texas Crim. Rep., 507; 17 Texas Ct. Rep., 447.

The fourth error complains of the failure of the court to charge on alibi. The evidence suggested this issue, but appellant did not ask the charge, and the court did not err in failing to so charge.

The only other question we deem necessary to pass on in this record is the sufficiency of the evidence to corroborate the accomplice Burke, this case being a companion case to the one above cited. We hold that the evidence is totally insufficient to corroborate the testimony of said accomplice. We do not deem it necessary to rehearse the evidence, but it clearly shows there is no such testimony as tends to corroborate the accomplice’s testimony, and thereby show that appellant was guilty of embezzlement as charged in the indictment.

For the errors pointed out, the judgment is reversed and the cause is

remanded.

Reversed and remanded.