In a motion for rehearing the state insists that there is evidence aside from the accomplice which tends to connect appellant as a principal with this killing. That he was not present is admitted. Not being present, the record must present, aside from the testimony of the accomplice, evidence which must tend to show that prior to the killing appellant had agreed to or advised it, and that at the time of the homicide was then doing some act in furtherance of the common design, such as keeping watch to prevent interruption of those actually doing the killing, or was then engaged in procuring aid, arms, or means to assist the actual killers, or was then engaged in efforts to secure the safety or concealment of those doing the killing. No witness saw appellant at the exact time of the killing, or pretends to say what he was doing at that precise time. Clements, a deputy sheriff — them man who, according to the state's theory, appellant was supposed to be watching — said he saw appellant walk by the drug store some five or ten minutes before he (Clements) received information that the killing had occurred; that he saw appellant go on in a fast walk and enter a club room. He did not say that appellant looked in the drug store and saw witness, nor does he attempt to say where the appellant had been prior to that moment. He does say that was the first time he had seen appellant on that night. He described no movements on appellant's part that indicated any unusual or unnatural conduct. It is only by the greatest stretch of the imagination that the incident so related could be claimed to show or tend to show that appellant was then doing anything connected with or incident to the killing. Neither do we think the evidence of Mrs. Furl, wife of the accomplice witness, supplies the corroborative evidence. She says that on the next day appellant had a conversation with her in which "He told me it was too bad for Jess being out there, that he'd do all he could *Page 576 to get him out of it, and he'd stayed in town that night to watch the law while they went out there." To our mind this evidence is lacking in probative force as showing or tending to show that appellant had agreed beforehand to the killing of the officers, or that he in fact did anything during the killing in furtherance of a common design to accomplish it, in the absence of which he could not be guilty as a principal. As was said in the opinion on the former appeal (291 S.W. 540): "We regret the necessity of reversing cases for lack of evidence, but we must do our duty in the premises as we see it." As long as Article 718, which positively forbids a conviction upon the testimony of an accomplice unless corroborated by other evidence tending to connect accused with the commission of the offense, remains in the Code of Criminal Procedure, it is the duty of this court to give it effect. The principle embraced in the article mentioned may be thought by some to be unwise. In some jurisdictions it does not obtain, but it has been a part of our substantive law since the beginning of our state jurisprudence. It was incorporated as Article 653 in the Code of Procedure adopted in 1856, and has been brought forward without change in every re-codification for the past seventy years. Having regard to the provisions of such law we must decline to depart from our original opinion.
The state's motion for rehearing is overruled.
Overruled.