Teague and Alexander are charged as principals, Armstrong as an accomplice to the robbery. The State must establish the guilt of the principal. This can be done by such facts as would be competent evidence against him if he were on trial. This rule settles the question against appellant raised in bills of exceptions numbers 1, 2, and 3. Cook, a witness, testified before the examining court. When on the stand, upon this trial, his attention was called to his written evidence taken on examining trial, whereupon he admitted the correctness of his written evidence, stating that it was "true." Counsel for appellant requested the court to instruct the jury, in substance, that the written evidence could be used only for the purpose of impeaching the witness, and not as testimony of the guilt of the accused. This the court refused to do. In this there was no error, and if the court had so instructed the jury, an error against the State would have been made. Counsel for appellant requested the court to instruct the jury, "that all acts and declarations of Alexander and Teague are in evidence only to show their guilt, and can not be used to show the guilt of the defendant." Conspiracy apart, the instruction contains a sound rule of evidence. But let us suppose that the acts and declarations of Alexander or Teague were admissible against them, but not against appellant. Should the requested charge have been given? This depends upon another fact. If the acts and declarations of the principal, though admissible against him, and not admissible against the accomplice, tend to criminate the accomplice, such instructions should be given. But if they have no such tendency, such a charge is not required. Why? Because the jury could not use them for an improper purpose; they could be utilized only for the purpose of proving the guilt of the principal. Looking carefully through the statement of facts, we find no act or declaration of either of the principals which tends to criminate the defendant.
The statement of facts covers forty pages (printed). We have examined it with great care, and must say that the accomplices, Alexander and Waites, were not very cogently corroborated by evidence from other sources. We are not to be understood as intimating that the corroboration is not sufficient, but that it is not very clear. We allude to this fact for the purpose of accentuating the necessity of instructing the jury in the manner requested by the appellant. Upon the necessity of corroboration the court gave this charge: "A conviction can not be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the *Page 422 offense committed, and one accomplice can not corroborate another accomplice, and the corroboration is not sufficient if it merely shows the commission of the offense. An 'accomplice,' as the word is here used, means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either before or after the commission of the offense, and whether or not he was present and participated in the commission of the crime." Counsel for appellant requested the following instructions: "The jury are instructed that an 'accomplice,' as the term is applied to a person charged with the commission of a criminal offense, is one who is not present at the commission of the offense; but who, before the act is done, advises, commands, or encourages another to commit the offense, or agrees with the person or persons committing the offense, to aid him or them in committing the same, though in fact he may not have given such aid; or who promises any reward, favor, or other inducements, or threatens any injury, in order to procure the commission of the offense; or who prepares arms or aid of any kind prior to the commission of an offense, for the purpose of assisting the principal offender in the execution of the same. That term, as applied to witnesses testifying on the trial of a criminal action, has a broader signification, and, in addition to accomplices as the same are above defined, includes all persons principal offenders, or persons engaged in the commission of the offense, and all persons who, knowing that an offense has been committed, conceal the offender, or give him any other aid, in order that he may evade arrest and trial." "The jury are instructed, that if they believe from the evidence that the witness Minden Alexander, together with Will Teague, or with any other person, robbed the witness J.G. Barry of any sum of money in Coleman County, Texas, on or about the 24th day of May, 1893, and that, after said robbery, said Randall Waites received any portion of said money from the said Minden Alexander, knowing the same to have been fraudulently acquired by the said Alexander in the said robbery, you will find that the said Waites is an accomplice to said robbery, and will have to be corroborated, as any other accomplice, before you can convict the defendant."
The court's definition of an accomplice is correct. But what information does it furnish the jury? They may know what is meant by "principal," and they certainly have been informed as to the meaning of the word "accomplice," as distinguished from a "principal offender." But what instructions have they received as to the meaning of "accessory?" Nothing whatever. The jury are told in the last sentence of the charge, that "accomplice" includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring before or after the commission of the crime, though not *Page 423 present and participating in the crime. Now, what unlawful act is referred to which occurred after the crime? There was no act proven against Waites which occurred before or at the time of the crime. What, therefore, unlawful acts or omissions were referred to? After the crime, what did Waites do? What were the unlawful acts committed by him which connected him with the robbery? Upon these important matters the jury were left completely in the dark, without guide or compass. That Alexander was an accomplice is evident; that Waites was an accomplice in law is beyond any sort of question. This being the case, why should the court submit this issue to the jury? Why not tell the jury that they were accomplices? Why go to the trouble of defining what constitutes an accomplice? If there be an issue raised by the evidence whether a witness be an accomplice or not, in such a case the court should leave the issue to be decided by the jury under proper instructions. What character of instructions? Abstract propositions of law, or definitions? By no means. The instructions upon this issue should be like all others. They should be applied to the facts bearing upon the issue. The jury should be told to find that the witness was an accomplice if he did certain things, or omitted to do certain things, if the things done or omitted in law made him an accomplice. Applying this plain rule to the case in hand, let us first ascertain what Waites did. He knew that the robbery had been committed. The second day after the robbery (Waites having, on the day before, received from Alexander $840, and placed it in his pocketbook, with full knowledge that it was a part of the spoils of the crime), the money was again counted, and the amount found to be $840. Waites swears: "Kid (meaning Alexander) ripped open my boot-leg and we put the money in the boot-leg, sewed the boot-leg up, and we carried the money that way while we were traveling. I wore the boot that had the money in it. We went to Franklin County. I turned the money over to Joe Waites," etc. Upon these and other facts defendant relied to show Waites an accomplice. If this is what Waites did with knowledge of the crime, applying the rule above stated, the court should have instructed the jury, that if they believed these facts (naming them), Waites, in law, would be an accomplice. The requested instructions sought to do this very thing, and though not sufficiently full, served to call the attention of the court to the proper character of instructions which should be given.
Now, we are not to be understood as holding that the judgment will be reversed in all cases in which the court instructs the jury in the manner and form as was done in this case. But when the jury may not understand abstract propositions of law or legal definitions, the necessity of applying the law to the facts bearing upon the issue becomes imperative, and such a charge as that requested by appellant *Page 424 should be given. The remarks of the district attorney will not likely be repeated on another trial.
The judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring.