Webb and Menick v. State

Court of Criminal Appeals of Texas

Webb and Menick v. State

7 S.W.2d 562, 110 Tex. Crim. 503, 1928 Tex. Crim. App. LEXIS 655

CourtCourt of Criminal Appeals of Texas

DecidedMay 2, 1928

DocketNo. 11567.

StatusPublished

Cited by4 cases

This text of 7 S.W.2d 562 (Webb and Menick v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Webb and Menick v. State, 7 S.W.2d 562, 110 Tex. Crim. 503, 1928 Tex. Crim. App. LEXIS 655 (Tex. 1928).

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Opinions

MARTIN, Judge.

Appellants were charged by indictment with robbery with firearms. The penalty assessed against appellant Webb was five years, and against appellant Menick, ten years.

It was shown by the State that prosecuting witness, Berry, was robbed of about Five Hundred Dollars in money by three men at about midnight on May 12, 1927, and that said witness positively identified A. G. Goforth as one of the participants in such robbery. Prosecuting witness further testified that participants wore black masks over their faces. The State used the accomplice Goforth as a witness, who testified, among other things, that the appellants artd himself robbed the witness Berry substantially as testified to by Berry, after which they started away in a Ford car and got stuck in the mud.

Objection was made to the introduction of testimony by Goforth and Chief of Police Gaither that some ten days after the robbery Goforth accompanied Gaither to the point where said car had been stuck and there pointed out to him some car tracks and that Gaither also found at that point the tops of some black stockings, which Goforth testified were used by the parties as masks on the occasion of the robbery. It is claimed by the appellant that this was the admission of a declaration of a co-conspirator made after the termination of the conspiracy and was too remote. There seems to have been no conversation between Gaither and Goforth admitted in evidence and the testimony went no further apparently than to point out the spot where the car of the alleged robbers had been stuck in the mud, which testimony was admissible as corroborative of the accomplice. Gray v. State, 99 Tex. Crim. Rep. 305. Funk v. State, 84 Tex. Crim. Rep. 402.

Complaint is made because the Court refused to charge that a witness, Mrs. Ethel Snyder, was an accomplice and that one accomplice could not corroborate another. The Court submitted the question of her being an accomplice as an issue to the jury and further instructed that if she were an accomplice that the jury could not convict the appellant upon either her testimony alone or on both the testimony of herself and witness Goforth. This was, in our opinion, all and more than the appellants were entitled to. We fail to find any evidence in the record, which, to our mind, would justify a finding that Mrs. Snyder was an accomplice. She heard and perhaps participated in a conversation between the parties concerning the robbery, but the evidence does not show her criminal connection *506 in any way with same. That she was particularly friendly with appellants is manifest, but we do not think that the evidence goes any further than to show such friendship.

Her attitude was such that the Court did not abuse his discretion in permitting the State to propound leading questions to her as complained of by appellant in Bill of Exception No. 11. Navarro v. State, 24 Tex. Crim. App. 378. Branch’s P. C., Sec. 158.

It is strenuously insisted that the accomplice Goforth was not corroborated. It has frequently been held by this Court that corroborative evidence need not be such as is sufficient to convict independent of that of the accomplice. One of the latest expressions of this Court on the question was in the case of Grice v. State, 298 S. W. 597, where some of the authorities are collated. The accomplice was corroborated by the finding of the tracks and the masks as testified to by him and further by the prosecuting witnesses Berry and Johnson as to the description of the three men who committed the offense and by Mrs. Snyder who testified to hearing a conversation between the three men with reference to its commission and only a little while prior thereto.

Believing the evidence sufficient, and that no reversible errors appear in the record, the judgment of the trial court is affirmed.

A ffirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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MARTIN, Judge.

Appellants were charged by indictment with robbery with firearms. The penalty assessed against appellant Webb was five years, and against appellant Menick, ten years.

It was shown by the State that prosecuting witness, Berry, was robbed of about Five Hundred Dollars in money by three men at about midnight on May 12, 1927, and that said witness positively identified A. G. Goforth as one of the participants in such robbery. Prosecuting witness further testified that participants wore black masks over their faces. The State used the accomplice Goforth as a witness, who testified, among other things, that the appellants artd himself robbed the witness Berry substantially as testified to by Berry, after which they started away in a Ford car and got stuck in the mud.

Objection was made to the introduction of testimony by Goforth and Chief of Police Gaither that some ten days after the robbery Goforth accompanied Gaither to the point where said car had been stuck and there pointed out to him some car tracks and that Gaither also found at that point the tops of some black stockings, which Goforth testified were used by the parties as masks on the occasion of the robbery. It is claimed by the appellant that this was the admission of a declaration of a co-conspirator made after the termination of the conspiracy and was too remote. There seems to have been no conversation between Gaither and Goforth admitted in evidence and the testimony went no further apparently than to point out the spot where the car of the alleged robbers had been stuck in the mud, which testimony was admissible as corroborative of the accomplice. Gray v. State, 99 Tex. Crim. Rep. 305. Funk v. State, 84 Tex. Crim. Rep. 402.

Complaint is made because the Court refused to charge that a witness, Mrs. Ethel Snyder, was an accomplice and that one accomplice could not corroborate another. The Court submitted the question of her being an accomplice as an issue to the jury and further instructed that if she were an accomplice that the jury could not convict the appellant upon either her testimony alone or on both the testimony of herself and witness Goforth. This was, in our opinion, all and more than the appellants were entitled to. We fail to find any evidence in the record, which, to our mind, would justify a finding that Mrs. Snyder was an accomplice. She heard and perhaps participated in a conversation between the parties concerning the robbery, but the evidence does not show her criminal connection *506 in any way with same. That she was particularly friendly with appellants is manifest, but we do not think that the evidence goes any further than to show such friendship.

Her attitude was such that the Court did not abuse his discretion in permitting the State to propound leading questions to her as complained of by appellant in Bill of Exception No. 11. Navarro v. State, 24 Tex. Crim. App. 378. Branch’s P. C., Sec. 158.

It is strenuously insisted that the accomplice Goforth was not corroborated. It has frequently been held by this Court that corroborative evidence need not be such as is sufficient to convict independent of that of the accomplice. One of the latest expressions of this Court on the question was in the case of Grice v. State, 298 S. W. 597, where some of the authorities are collated. The accomplice was corroborated by the finding of the tracks and the masks as testified to by him and further by the prosecuting witnesses Berry and Johnson as to the description of the three men who committed the offense and by Mrs. Snyder who testified to hearing a conversation between the three men with reference to its commission and only a little while prior thereto.

Believing the evidence sufficient, and that no reversible errors appear in the record, the judgment of the trial court is affirmed.

A ffirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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7 S.W.2d 562, 110 Tex. Crim. 503, 1928 Tex. Crim. App. LEXIS 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-and-menick-v-state-texcrimapp-1928.

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