Morse v. State

293 S.W. 568, 106 Tex. Crim. 520, 1927 Tex. Crim. App. LEXIS 218

• Court: Court of Criminal Appeals of Texas
• Decided: February 2, 1927
• Docket: No. 10248.
• Status: Published

Opinions

LATTIMORE, Judge.

Conviction in District Court of Jefferson County of theft, punishment two years in the penitentiary.

One Nichols testified that he and appellant stole the car in question from near the Heisig hotel in Beaumont on July 2,1924, and took it to Houston where it was sold by appellant to Mr. Verhelle, witness being present at the sale, which was made at a garage on San Jacinto street, in Houston. This witness further testified that he had seen the car, since it had been recovered and brought back to Beaumont, in possession of its owner. This testimony, if true, would make out a complete case of theft against appellant. Under our practice there would remain only the question of other evidence than that of the witness referred to which would tend to connect appellant with the theft, and if such be produced the case would meet the requirements of the law. Verhelle testified that he bought the car in August or September, 1924, and that he either purchased it or saw it first at a garage on San Jacinto street, in Houston. He returned the car to parties who came and later claimed it. This witness further said that appellant looked like the man who sold him the car, but he could not swear beyond a reasonable doubt that he was the man. He also said, “I think he is the man who sold me the car.” He affirmed that the man whom he took to be appellant, Morse, and from whom he bought the car, had on a white hat. Witness Cardino testified that he saw the men when they drove up to Verhelle’s place and that one of them had on a white hat, “and I thought sure it was Mr. Morse, but I wouldn’t be sure of it.” We have here then a case in which the accomplice swore that the man who sold the stolen car to Verhelle was appellant Morse — Verhelle testifying that he thought the man was Morse, and that the man looked like Morse, and have Cardino saying he thought sure it was Morse whom he saw on the occasion at Verhelle’s place. We are unwilling to say that the evidence of Verhelle and Cardino does not “tend to connect” appellant with the theft.

The learned trial judge fell into error by giving the charge on accomplice testimony in the form as laid down in Campbell v. State, 57 Tex. Crim. Rep. 301, which has been often criticised since, and in some cases would be entirely inapplicable and might necessitate reversal. In Watson v. State, 90 Tex. Crim. Rep. 576, 237 S. W. 298, a similar charge was given, and we affirmed the case, saying that while the charge was erroneous in that it told the jury they could convict if they believed the testimony of the accomplice was true and that it connected the defendant with the offense, etc., still it was not error of such gravity as would call for a reversal because the facts in evidence showed that the testimony of the accomplice did more than merely connect the accused with the crime — it made out a complete case against him if true. This holding is approved in Abbot v. State, 94 Tex. Crim. Rep. 31, 250 S. W. 188, and Spears v. State, 102 Tex. Crim. Rep. 86, 277 S. W. 142. We think the reasoning applies here. The testimony of the accomplice was sufficient, if the jury believed it true, to make out the case, and we are of opinion that there was evidence in the record aliunde tending to connect him with the theft. We do not reverse cases for errors in the charge unless such errors seem capable of injury to the rights of the accused. Art. 666, 1925 C. C. P. We have thus substantially considered and discussed the two bills of exception raising the error of the charge and the sufficiency of the evidence.

Finding no error in the record, the judgment will be affirmed.

Affirmed.