On February 23 of this year the judgment of the lower court was affirmed. On March 10 appellant filed a motion for rehearing vigorously assailing the original opinion, and contending *Page 101 that this court was in error in holding that there was a case pending in the County Court of Fannin County when the bribe was offered to the prosecuting witness not to appear at court and testify; and, second, that this court was in error in holding that the court below did not err in omitting to charge the jury that the State's witness Hall was an accomplice, and that his testimony would have to be corroborated, and in not submitting the issue to the jury as to whether or not he was an accomplice.
Adhering to our former opinion, the motion for rehearing must be overruled. There has been nothing presented in the motion that would cause us to depart from our original opinion. We deem it necessary, however, to emphasize our holding that the court below did not err in failing to submit the issue as to whether Hall was an accomplice or not, and we will here review the testimony of the prosecuting witness Hall and the appellant, and the deduction that we draw from their testimony is conclusive that there is no testimony that would suggest that the witness Tom Hall was an accomplice. Tom Hall testified that he had been summoned by the State of Texas as a witness against appellant in the County Court of Fannin County, wherein the defendant was charged with violating the local option law, and that on the night of the 28th of June, 1907, the witness was at an ice cream supper at Mr. Vaughan's residence, and that appellant approached him on that night and called him off, and offered him $25 to leave the country, and he had a written paper there and wanted witness to sign it. Witness declined to leave, refused to be bribed, and also refused to sign the paper. The witness testified further that some days thereafter he was at work in the field with one Burrel Smith and one John Crouch, and appellant came to the field where he was at work about 12 o'clock in the daytime, and called him off some little distance from the other parties and again stated to the witness that he would give him $25 to leave, and for him to sign the paper. Witness says he again refused, when appellant assaulted him, and while beating him he was demanding that he sign the paper and demanding that witness take the $25 and leave the country. That the witness further testified appellant carried him away from the other parties into a corn field, and there they met up with one Smithey and one Wilkerson, and appellant called on Smithey for a pencil, and there made witness sign the paper. He could not tell exactly what was in the paper, but to the best of his recollection it read about as follows: "I, Tom Hall, promise and agree to sign before witnesses to leave for $25." The witness Smithey testified that he was down in the field with the witness Hall hoeing cotton when appellant came down there and called Hall off; that he did not understand what passed between them, but shortly he heard Hall holloing and appellant beating him and asking him if he was going to sign, and that Hall was refusing to sign. This witness further testified he was at the ice cream supper and heard appellant say to the State's witness Hall that *Page 102 he had a paper there that he would like for him, Hall, to look at, and they stepped away from the door, and he heard nothing further. Clarence Smithey testified that he was horseback on the day of the difficulty, riding along the road, and he heard the witness Hall holloing, and at that time they were coming across the woods, and appellant was leading Hall, or rather shoving him along. Jim Vaughn testified that he saw appellant hand Tom Hall a paper at his house on the night of the ice cream supper, and saw Hall hand the paper back to appellant, and heard him tell appellant he could not and would not sign it. The witness T.E. Wright testified that appellant came to him shortly before this difficulty and asked him if he supposed that Hall would appear against him in that whisky case, and requested the witness to tell Hall that he did not want him to appear, and if he did, he was going to whip the devil out of him. The witness further testified that appellant asked him "if a witness signed a contract in a case not to appear against a person in a case, if he would sign that contract on Sunday would it be just as good as it would be if he signed it on a weekday," and appellant further asked witness if he knew whether Hall was going to leave the country or not. Appellant took the stand and testified that he had never offered the witness Hall anything to leave the country; that he knew he was charged in the County Court with violating the local option law by selling whisky to the witness Tom Hall. Appellant further testified that one Elmer Knight came to his house one Sunday morning and said that Tom Hall told him to come down there and see if he, appellant, would give him some money to leave, and that he would leave if appellant would give him the money. Appellant stated that he told Knight that he would not give him any money if he was going to be hung. Knight replied that Tom would leave if appellant would give him some money. Appellant refused to do this, and says that Knight suggested that he, appellant, make an offer in writing and get him (Hall) to sign it, and that they would come up then and Hall could not testify, and suggested to appellant that he write about as follows: "I, Tom Hall, offer and agree for $25 not to appear and testify," and suggested to appellant that if he would make this offer that way or before a witness that Hall could not testify. Appellant testified further that he prepared the writing as above suggested and presented same to the witness Hall at Vaughn's for him to sign; that he refused to sign the paper, but said that if appellant would pay him $25 he would sign the paper. Appellant testified that he would not offer to pay him $25 or any other amount and did not pay him a cent. That he positively refused to sign the paper. Appellant further testified that after Hall would not sign the paper he tore it up. That a few days after that he went down in the field where Hall was at work, but did not have any paper; that the reason he went down in the field was because Hall had come up to court and swore a lie against him for selling whisky, and that he went down there to straighten that up with him *Page 103 a little, "like a fellow generally does." That he accosted the witness Hall and asked him why he swore a lie against him, and asked him if he did not know he was liable to get a thrashing about it. He said that Hall stated that he had to get out of it himself, was why he told on appellant. And continuing, appellant says: "I asked him then if he would sign a lie bill, or statement, showing he had lied about it, and he said he would not do it, and I thrashed him a little, and I asked him once in a while, I would stop and ask him if he would sign it, and he would say no, and he finally said he would sign it, and I told him all right. Hall himself had been chopping cotton there, he and some other boys. Hall was behind about 150 yards, and I did not know but what they would quit and come down there with a gun, and I did not have any paper, and I just thought I would go up to Dillard McBroome's and get a pencil and he stayed in the corn patch, and I went up there and got a pencil and paper and I just wrote out a statement showing he had sworn falsely and he signed it. I never gave him any money and never offered him any money, and all I did was to try to get him to make me an offer. I had been advised that he could not testify if he did." This is substantially the testimony in the case, and we can not see from this testimony any guilty participation whatever on the part of the witness Hall. Hall's testimony excludes such an idea. Appellant's own testimony does not suggest such a theory. Hall's contention was that appellant made him the proposition to bribe him, and thrashed him because he would not be bribed. Appellant's theory was that he tried to get him to sign the paper down at Vaughn's house so as to compromise him as a witness when he should testify, and that he thrashed him because he was not willing to sign a lie bill.
We therefore hold that the court below did not err in not submitting the issue of accomplice testimony to the jury, and that appellant's motion for rehearing is without merit, and the same is in all things overruled.
Overruled.