The offense is proved by accomplices. The conviction cannot be sustained unless (a) the accomplice testimony of the corpusdelicti is corroborated, and (b) there is other testimony tending to connect the appellant with the commission of *Page 554 the offense. Crowell v. State, 24 Texas Crim. App., 410; Hanson v. State, 27 Texas Crim. App., 140; Truelove v. State,44 Tex. Crim. 389 Ruling Case Law, vol. 1, p. 169; Slaughter v. State, 86 Tex.Crim. Rep..
To corroborate the accomplices to the point that the offense was committed by some one, the testimony of the non-accomplice witness shows that he saw a package containing a fruit-jar delivered to the accomplices in a manner and at a time and place coinciding with their testimony. The contents of the package were unknown to the non-accomplice witness.
If it be assumed that the corroboration was sufficient to establish the fact that the offense was committed, the question remaining: "Did the corroborating evidence meet the demand of the statute requiring that the corroboration tend to connect the accused with the commission of the offense?" Upon the identity of the appellant as the person who delivered the package to the prosecuting witness the evidence is circumstantial.
To the inquiry of the alleged purchaser whether appellant knew where he could get whisky, he replied that he did not. Appellant's brother owned a Studebaker automobile which was used as a service car and generally driven by the appellant, though sometimes by the brother. A few minutes after talking to the alleged purchaser, appellant talked to, over the telephone, and went, in the car mentioned, with another person to the Fair Grounds, reappearing at the place where the car usually stood about forty minutes later. At sometime between eight and ten o'clock, a state's witness, other than the accomplice, saw some person sitting on the driver's seat in the Studebaker automobile of the number and make of that belonging to appellant's brother and deliver a package to the alleged purchaser of the whisky. The identity of the appellant as such person was essential to the State's case. Admittedly, appellant's brother owned and sometimes drove the car. The corroborating witness does not assume to say that on the occasion mentioned the appellant was driving it, nor does he state that the person who delivered the package was alone in the car. The car was used for carrying passengers, and so far as the evidence reveals, the one who delivered the package may have been a passenger, or appellant's brother.
To meet the measure of the law, it is necessary, on the present record, that the evidence exclude to a moral certainty the theory that the person delivering the package was other than the appellant.
The motion is overruled.
Overruled. *Page 555