The conviction is for the offense of burglary. It appears that Van Dusen was the owner of a country store near Lytton Springs which was burglarized on the 29th of May, 1917. Van Dausen said that he alone attended to the store; that he closed it and fastened the doors and windows about dusk; that on the following morning he found the doors had been broken open. That he did not give appellant or any one else consent to do so; that a number of articles including soda water in bottles, had been taken from the store. Bottles of the same brand were two or three days later found in a field near the road as though thrown into the field from the road. They were a half mile from the store and in the direction of Mendoza which was other than that which would be traveled in going to Lockhart.
George Dillard testified that he, together with appellant and his brother, Joe Meredith, got a buggy from Mr. Sternberg starting on a fishing trip. That on the way they made an agreement to go into Van Dusen's store. He said that they passed the store without stopping because they saw a buggy coming from the opposite direction toward the store. They met the buggy which was occupied by Mr. Smith and Mr. Strong. After some conversation with these parties the witness and his alleged companions and Smith drove back past the store, Strong getting out at his home on the way. After passing the store a short distance, at the fork of the road, they separated, Smith going toward his home and the witness and his companions taking the road toward Lockhart, subsequently *Page 241 turning around, hoverer, and driving back to the store. Joe Meredith, he said, went in one of the side doors which he forced open while appellant and the witness were watching to see if anybody came. Joe got some soda water and then appellant went in and he thought got a box of candy. He, witness, did not go in the store. That after appellant and his brother came out they showed witness soda water, candy and sausages. They then went up the road toward Mendoza drinking soda water and throwing the bottles out on the side of the road.
Mr. Sternberg testified that appellant and Dillard arranged with him and his brother for a buggy which was later turned over to them. That he did not know when they returned but saw the buggy back in the yard next morning. This was some ten days before the witness heard of the burglary of Van Dusen's store.
Smith testified that on the night that the store was burglarized that he started for his home from Lytton Springs about ten o'clock. Strawn was with him. They stopped at Strawn's house which was some 200 yards from Van Dusen's store, between Lytton Springs and Van Dusen's store. Appellant, his brother, and Georeg Dillard came up in a buggy and had a conversation for a while after which Strawn went into his house and witness, appellant and his companions drove down the road, passing Van Dusen's store, witness turning off towards his home, the others driving on towards Lockhart. He heard of the burglary next day. The witness thought it was about 10 o'clock when they first met and that he reached home about 10:30 o'clock. A witness for appellant testified that he met appellant and his brother and another person driving in a buggy on the night in question, about five or six miles from Van Dusen's store in the direction of Lockhart, in which direction they were traveling. This, the witness thought was about ten o'clock. The witness was not certain this occurred on the night of the burglary. Another witness testified to the same facts. Clayton Meredith, a brother of appellant, testified that he saw appellant and his brother Joe and Dillard start out in Sternberg's buggy about sundown. He next saw them about eleven o'clock that night when they came in. That he was positive that appellant returned at that time but was not certain with reference to Dillard coming at that time or not. Did not see him. Appellant testified that he had arranged to go to Lytton Springs, in that neighborhood, and that Dillard requested the privilege of accompanying him; that they left Lockhart about sundown in Sternberg's buggy; that they reached the point on the edge of Bastrop County, which was his destination, about eight or eight-thirty in the evening, remaining there about fifteen minutes, and returning overtook Smith and Strawn between Lytton Springs and Van Dusen's store. Stopped and talked with them at Strawn's store probably a half an hour, drove in compny with Smith some seven or eight hundred yards from Strawn's house, separating at *Page 242 the fork of the road; that he and his companions continued their trip toward Lockhart, met Mr. Ebersole and Mr. Starling on the road about six miles from Van Dusen's store, reaching home about eleven o'clock. He denied any connection with or knowledge of the burglary.
The question is, is there sufficient evidence corroborating the accomplice? The law does not require that the evidence, independent of that of the accomplice, should establish guilt. Nourse v. State, 2 Texas Crim. App., 304, and other cases listed in Branch's Ann. P.C., Sec. 719. It requires only that there should be criminative facts proved which tend to connect the accused directly and immediately with the commission of the offense. Weldon v. State, 10 Texas Crim. App., 400, and other cases listed in Branch's Ann. P.C., p. 368. Our statute on the subject is as follows:
"A conviction cannot be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient, if it merely shows the commission of the offense."
On the subject we quote from Wharton Crim. Ev., Vol. 2, Sec. 442, as follows: "There may be many witnesses, therefore, who give testimony which agrees with that of the accomplice, but which, if it does not serve to indentify the accused parties, is no corroboration of the accomplice; the real danger being that the accomplice should relate the circumstances truly, and at the same time attribute a share in the transaction to an innocent person. It may indeed be taken that it is almost the universal opinion that the testimony of the accomplice should be corroborated as to the person of the prisoner against whom he speaks."
The evidence shows that the burglary was committed. The accomplice testifies that appellant participated. The evidence, independent of the accomplice, tends to show that appellant was present at the time the offense was committed, and was the companion of the accomplice before and after its commission. The accomplice and appellant started together, were seen together near the burglarized premises, and according to appellant's own testimony remained together throughout the journey and returned together. It is true, as contended by appellant, that his mere presence would not alone make him guilty as a principal, but the accomplice having testified to facts showing that appellant was a principal, the other facts showing that at the time and place the offense was committed, he was present with the accomplice, we think, meets the requirements of the law intending to establish his identity as one of those who committed the offense. We are, therefore, constrained to believe that we are not authorized to sustain appellant's contention that the evidence fails to support the conviction.
The judgment of the lower court, is, therefore, affirmed.
Affirmed. *Page 243
ON REHEARING. April 23, 1919.