I do not agree with the opinion of the majority of the court reversing this case. While the authorities cited by the majority hold the court's charge on accomplice's testimony to be erroneous, still in my opinion, under article 723, Code Criminal Procedure, reversal is not authorized, unless the error in the charge was calculated to injure the right of appellant. The question thus arises, does this charge injure the rights of appellant? I say not. The evidence shows substantially the following facts: Mrs. Aranoff testified that appellant, in conjunction with Holly Vann, came to their store, where she and her husband lived, each having a pistol, and presented the same on her husband (deceased) and ordered him to throw up his hands. Her husband threw up his hands, and insisted if they wanted his money to get it out of the cash drawer. She rushed to the assistance of her husband, and thereupon appellant shot at her husband, and his codefendant, Holly Vann, shot and killed her husband. Upon this trial she thoroughly identified appellant as the party who assisted in the killing of her husband. The State introduced Chas. Adams, who testified among other things that on the night of the homicide he heard three shots in the house where the homicide occurred. At the time of the shooting he was tying his cow on a lot adjoining to house, in order to permit her to graze, and immediately raised up and saw two men coming from under the shadow *Page 43 of a little gallery on the Aranoff place. When they came from under the shadow of the gallery they came into the light, because the light reflected from the electric light, and also from the cars that were passing. "I do not suppose it was over thirty or forty feet from the electric light to where they came out of the house. That was an arc light; it was hanging up from the ground. I expect I was about seventy-five or eighty feet from those two men when they came out. I saw one of them very distinctly, but the other did not come exactly towards me. When they came out of the house they were running, or hopping along like they were running. They ran east or southeast. They were not coming directly towards me at that time. They were not going from me, but coming towards me. One of the men might have come within thirty feet of me. I thought I knew that man, when I saw the shape of his shoulders and head. When I saw his face I recognized him. He was a black man. I see that man in the courtroom now. The defendant is that man. I am certain of that in this way. I did not know his name; I had seen him a number of times, but it was seven or eight years ago, when I knew him. I knew him by reputation. I knew him when I saw him, and knew who he was. At the time I saw him that night I did not know his name, but before that, seven or eight years ago, I knew his name. On this night I do not remember whether he had on a derby hat or cap. He had on some kind of a hat that did not have much brim to it, I know; I am certain he is the man that passed by me there. I did not see either of them when they came out of Aranoff's door, as they were coming out of the shadow. I know he was the man that was coming from there. It was only a few minutes or a few seconds time after these shots were fired, until these men came out of there. It was not over a minute." This witness also testified to facts indicating that he had seen appellant before that night, and at various other times, and thoroughly identified appellant as the party who came running out of the house at the time of the homicide. The other evidence for the State, and part of that for the defense, placed appellant near and about the house both before and after the homicide. There is no controversy on the part of the State and appellant as to the fact that appellant was quite near the scene of the homicide. The testimony of the defense all goes to show this. Now, the testimony of the witness McCue, who was also indicted with appellant and Holly Vann for this homicide, is to the effect that appellant, Holly Vann and himself got in a buggy, rode over to Oak Cliff, something over a mile from the scene of the homicide; that they secured the buggy back of the Everett saloon, which is also in the immediate neighborhood of where the homicide occurred; and after they returned from Oak Cliff, Holly Vann suggested they hold up Sol Aranoff, the deceased. The accomplice McCue, swears that he refused to assent; but that appellant and Holly Vann immediately started in the direction of Aranoff's store, and he (McCue) went to a saloon nearby. He testified *Page 44 to statements on the part of Holly Vann, and perhaps appellant, indicating that they had robbed and brutally killed deceased, Aranoff. Now, taking the above statement of the record, together with many other features of it unnecessary to state, I cannot believe that the charge in the matter complained of, could have injured appellant, because it is conclusively established from the mouths of two witnesses, other than the accomplice McCue, that appellant was present and participated in the homicide. Furthermore, the court in its charge tells the jury that they are the sole and exclusive judges of the credibility of the witnesses and of the weight to be given their testimony, and that they must believe appellant guilty beyond all reasonable doubt before they could convict him.
However, as an original proposition, I believe the charge complained of is correct. Under a long line of old precedents it was uniformly held good, and no one can read the charge and say it is on the weight of the evidence. The authorities cited by the majority lay down a rule for a charge on accomplice's testimony that is upon the weight of the evidence, and is a direct intimation on the part of the court to the jury that the court decides the credibility of the accomplice's testimony. Furthermore there is no law in this State that justifies the previous opinion of this court (12 Texas Ct. Rep., 921), holding McCue an accomplice in law by sheer force of the fact that he was indicted for the same offense and agreed to tell what he knew about the crime with which appellant was charged; it takes evidence to make one an accomplice; the law does not do so. It might not have been a just conclusion from the evidence that one is an accomplice; but it is at variance with every precedent of this court to hold that the mere fact that one is indicted for a crime and turns State's evidence, under the promise to tell what he knows about the offense, that per se he is in law an accomplice. If his evidence and the other evidence completely exculpates him, he may not be an accomplice. The fact of being indicted and agreeing to tell what he knows about the crime for which appellant is on trial may be sufficient to justify the court in submitting the issue to the jury as to whether or not he is an accomplice, but certainly these facts do not prove as a question of law that he is an accomplice. The former opinion in this case, supra, relies upon Barrara v. State, 42 Tex. 260 [42 Tex. 260], as authority for the converse of this proposition. There is some dicta in the opinion warranting such a conclusion, but a casual inspection shows that the court merely approved a charge submitting to the jury the issue of accomplice's testimony, and held that the charge ought to have been given to the jury submitting said issue. It is an axiomatic proposition of law that criminality depends upon facts and not upon law. The mere fact that one is indicted, either separately or jointly for the same offense, and agrees to tell what he knows about the crime where his codefendant is being tried, does not per se make him an accomplice. To so hold, as was done *Page 45 on the former appeal of this case, makes a man guilty of an offense whether the fact so show or not. I cannot agree to such a position.
Nor do I agree with the opinion of the majority that the evidence called for a charge from the court as to whether or not Mrs. Aranoff fired the shot which killed deceased. This matter was discussed on the former appeal, and the court held it was not necessary to so charge. The evidence is substantially the same in this respect on this appeal as on the former appeal; and the court properly failed to give such a charge.
As I view the record there is no reversible error, and the judgment should be affirmed. So believing I dissent from the opinion of the majority.