By an extended motion and oral argument appellant vigorously attacks the correctness of our affirmance of this case, and seeks a rehearing mainly upon the proposition that the evidence is not sufficient to corroborate the accomplice, Henry. Former opinions of this court relative to these cases are referred to by appellant and contrasted, it being insisted that in Howard's case, 242 S.W. Rep., 739, this court expressed doubt of the sufficience of the corroborating testimony, which appellant insists is the correct attitude for this court to now assume in this case, and we are critcized *Page 262 for what was said by us in Walker, et al. v. State, 252 S.W. Rep., 543, in which we said: "The record supports the finding by the jury from evidence independent of that of Henry, of certain circumstances which are relied upon to corroborate." Before proceeding to discuss the facts relied on by us to sustain our conclusion in the instant case, it may be well to call attention to some of the facts that were before the court when the opinion in Walker, et al. v. State, supra, was written. It is also stated in the opinion in that case that:
"No effort has been made to state all of the testimony, nor to particularize all of the facts relied upon as corroborative of Henry. While many of the circumstances are controverted, the truth of them was for the jury, and, if found to be true, they may reveal facts independent of the testimony of Henry, sufficient to support the jury's finding that they tended to connect the appellants with the commission of the offense. It is not upon one circumstance alone that reliance is had, but cumulative weight of a series of circumstances, and it is in this light that the sufficiency of the evidence must be judged."
From the record of the case of Walker, et al.,supra, it appears that Mrs. Willman, the wife of this appellant, took the stand and testified, as did also Gibbs Howard, a co-defendant with this appellant, and Howard's wife. From these witnesses it was elicited that the appellants and Henry were associates and co-principals in the illicit manufacture of whiskey and that this was known to deceased. It was shown that the grand jury was in session, and that the deceased, together with Henry, Walker, Willman and Howard, were all at the home of appellant on the evening of the alleged homicide. The testimony for the defense in the case of Walker, et al. v. State, supra, was offered in support of the proposition that deceased left the home of appellant alone for the purose of going to Hasse, where he lived, going in a direction that would take him to the railroad track, down which led the nearest way from the home of Willman to the town of Hasse, and that a short time after he left Willman's house the noise of a passing train was heard. The theory of the appellants throughout all of the cases has been that deceased came to his death by being run over by a railroad train, and that he was not murdered and his body placed on the railroad track, as contended by the State and testified to by the accomplice Henry.
It might be stated in this connection that this court has never doubted the proposition that there was abundant evidence to show satisfactorily that McCurdy was killed and his body placed upon the railroad track after his death. Being satisfied on this point, and the testimony offered by the defense, as well as that by the State, fixing the presence of deceased at the home of appellant on *Page 263 the evening of May 12, 1921, and also fixing the presence there of the three men who are now charged with the murder of McCurdy, and these facts being further attended and surrounded by other circumstances which were not discussed, showing that a murder was committed at the home of Willman on said night, it appeared to us, as stated in substance by Judge Morrow in the opinion in Walker, et al. v. State, supra, that the evidence was sufficient to corroborate that of accomplice Henry.
Reverting to the facts in the record before us, and discussing them with a view of a decision of the question as to the sufficience of the testimony to corroborate the accomplice Henry, which will be the only question discussed, the others raised in the motion not being deemed sufficient to call for the granting of the motion or to require discussion, we observe: — Henry says the murder was committed about night on May 12, 1921, at appellant's house by appellant and Ed Walker, Howard being present and participating, one of whom held deceased while the other struck him three blows, two on the head and one in the face, with something picked up by Walker. This took place in appellant's yard. Is there corroboration of accomplice Henry on this point? Mrs. Henry and her sister testified that they left the Henry home in the afternoon of May 12th, leaving Henry and deceased alone there. Appellant's house was a few hundred yards south of that of Henry. A number of witnesses establish the fact that deceased wore boots. By outside witnesses it was shown that tracks of a boot-shod man and a shoe-shod man walking together were found the next morning leading from Henry's house to that of appellant. Henry swore that he and deceased walked together in the late afternoon of the 12th from his house to that of appellant. He said that after the homicide he returned alone to his house. The outside witnesses also testified to the track of the shoe-shod man alone returning from appellant's house to that of Henry. This would tend to corroborate Henry in stating that he and deceased went to the house of appellant that afternoon. Henry said that when appellant and Walker knocked deceased in the head, one of the women at the house screamed and that he, Henry, started to run, and Howard, a co-defendant of appellant, shot at him. Mr. Newby and his daughter lived in a westerly direction from Henry, and a northwest direction from appellant's house. The distance from each place to Newby's was approximately the same. About the same time of day fixed by Henry as that of the scream and shot. Newby and his daughter testified that they heard a woman scream and a gun fire and thought it to be in the direction of Henry's house. The entire evidence affirmatively establishes the fact that at that time there was no woman at Henry's house and that the only two comparatively *Page 264 near-by houses east of southeast from Newby's were those of Henry and appellant. This tends to corroborate Henry's story that there was a scream and a gun fire at appellant's home about the time of the homicide. Henry swore that there were three bloody places in appellant's yard where the killing took place. He also testified he went back afterward with the officers and that upon each place where the blood had been in the yard there were piles of ashes. The outside witnesses swore that they found the three piles of ashes in appellant's yard; that the remainder of the yard was clay and very hard, one witness saying as hard as flint; under the ashes also the witnesses found the ground to be moist and soft and penetrable by a spade. This tends to corroborate Henry's testimony that there were three spots of blood in the yard. Henry swore that after he and deceased got to appellant's house on the 12th, Walker and Howard, co-defendants with appellant, rode up, one riding a black and the other a gray roach-mane horse. A bay and a sorrel horse were tied to a near-by wagon. Before Walker and Howard came deceased accused appellant of pasturing on him, which appellant denied. Shortly after Walker and Howard came, words arose between Walker and deceased because of a supposed visit of deceased to the grand jury that day and appellant and Walker attacked deceased. It was in testimony that Walker and Howard were at the town of Hasse, a short distance from appellant's home, between sundown and dark that same afternoon, inquiring for deceased, and that as they rode away Walker was heard to say that if they found deceased nobody else would ever see him alive. A witness said that Walker and Howard were riding, one a black horse and the other a gray roach-mane horse. It was shown that the track of this gray horse had a noticeable peculiarity. Henry swore that after deceased was killed by Walker and appellant, they wrapped his body in a quilt, Walker got on one of the horses and the body was placed on the saddle before him, and that appellant got on the other horse and holding the feet of the deceased, they rode away in the direction of the railroad track. By outside witnesses it was in testimony that the next morning after the body of deceased was found on the railroad track, a place was observed near some elm bushes twenty or thirty steps from the place where the body was supposed to have been put on the track, and two horses were back-tracked from there to a point just west of appellant's house, the two horses coming from the direction of appellant's house toward the railroad track side by side. One of the tracks exhibited the peculiarity of the gray horse above mentioned. Other witnesses who tracked the horses away from the vicinity where the body was found on the railroad, said they went in the direction of appellant's house, and one witness said he tracked them to appellant's barn. This tended to *Page 265 corroborate Henry's testimony that the murder was committed at appellant's house and the body was placed on one of the horses and that another man riding side by side with it went from appellant's home to a point near the railroad track and that there the body was placed on the track and left. Henry testified that when Walker and appellant left with the body on horseback, he and Howard walked up to the railroad track and then assisted in carrying the body and placing it on the track. He said that appellant removed the boots from the body and put them on his own feet and went away saying that he was going to make tracks along the railroad as though deceased had walked along the track, and presently came back saying that he had made the tracks. The boots were then deposited on the railroad track not far from the body. It was in testimony that boot tracks were observed on the railroad track. When the body was found the feet and lower limbs were crushed and mangled. The boots of deceased were off the body and had no flesh or blood on or in them, and were not cut or broken. Henry testified that when they left the body and started back, Walker and appellant told him and Howard they would meet them at Willman's barn. This was the point to which the horse tracks went as testified to by other witnesses. It was also shown that Walker borrowed a saddle the afternoon of the alleged homicide. When the owner got it back afterwards, there was on it a dark discoloration which a doctor said he believed to be blood.
Our statutory declaration (Art. 801, Vernon's C. C. P.,) as to the amount of corroboration necessary in case the State relies on accomplice testimony, is that there must be testimony other than that of the accomplice which tends to connect the accused with the commission of the offense. No rule has been laid down attempting to define the exact amount of testimony, nor to specify or enumerate facts which would be deemed enough or not enough to satisfy the statutory demand. Our law-makers contented themselves by saying that in such case there must be some evidence other than that of the accomplice tending to connect the accused with the offense, and in its last analysis the sufficiency of the corroboration must be determined by the facts of each case. Boone v. State, 90 Tex.Crim. Rep., 235 S.W. Rep., 580.
Taking all of the circumstances in this case together and bearing in mind the further pertinent circumstance that it was shown that both Mrs. Willman and Mrs. Howard were present and that no member of appellant's family was placed upon the stand to deny or combat any of the facts or circumstances put in evidence by the State, or to explain any of the criminating evidence against appellant, we are of the opinion that the evidence in this case is sufficiently strong to meet the demand of our statute, and to tend to connect appellant *Page 266 with the commission of this crime. Henry says it was committed in appellant's yard, and certainly there are numerous circumstances tending to show deceased alive at appellant's place and none supporting the theory that he left there except after he was murdered, as testified to by Henry. That a man was murdered in the yard of another who offers and attempts no sort of explanation, when such explanation would be available by witnesses other than himself, would seem of itself to tend, at least, to connect him with such crime. As stated above, we have little doubt as to the proposition that the body of deceased was lifeless when placed on the railroad track. The testimony is from numbers of witnesses and abundant on this point. We have not attempted here to set out in detail all of the facts relied on, but have set out what are deemed enough to justify our conclusion.
The motion for rehearing will be overruled.
Overruled.
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.