In our original opinion reference was made to certain statements of the witness Esther Turner with the conclusion that such statements "characterized her as an accomplice witness." It is then said in the opinion, "one who knows that a crime has been committed and purposely gives aid in order that the offender may evade arrest or trial or the execution of sentence is an accessory under Article 77, P. C. When one who is in the attitude of an accessory becomes a witness, his testimony is tested by the rule applicable to an accomplice witness."
The State calls attention to the fact that Esther Turner was a daughter-in-law of appellant and therefore could not be an accessory under Article 78, P. C. (1925) which reads as follows: "The following can not be accessories: the husband or wife of the offender, his brothers and sisters, his relations in the ascending or descending line by consanguinity or affinity or his domestic servants."
It may be conceded that the State's position in this regard is correct. See Smith v. State, 51 Tex.Crim. Rep.,100 S.W. 924; Fondren v. State, 74 Tex.Crim. Rep.,169 S.W. 411. We understand one of the contentions of the State to be that Esther Turner being excluded by the terms of said Article 78 from prosecution as an accessory, she can not be held to have been an accomplice witness as a matter of law. We think the conclusion contended for by the State does not necessarily follow. Of course, if the facts show that a witness was connected with the crime as an "accessory" under Article 77, P. C. (1925) and could be prosecuted as such, the party would by reason of the statute be an accomplice witness when called by the State to testify. But if such witness be excluded as an accessory by the terms of Article 78, P. C. — that is, if the witness could not be prosecuted as an accessory under the terms of said article — it by no means follows that said witness by his conduct might not so connect himself with the case as to characterize him as an accomplice witness as a matter of law when called by the State to testify. We think it a sound proposition ordinarily that one who would be liable to prosecution as an accessory but for the exemption of Article 78, P. C., would fall under the classification of an "accomplice witness" when called by the States to testify.
We are not able to distinguish this case from Little v. State, 111 Tex.Crim. Rep., 14 S.W.2d 853. There Ellis testified on the trial *Page 439 to facts making out a case of murder against accused. His statements theretofore made to officers were that the killing was an accident, the effect being to aid accused to evade prosecution. In the original opinion in that case it was said that evidence which would characterize Ellis as an accessory would also classify him as an accomplice witness. The contention of the State on motion for rehearing there was the same as is now urged by the State in this case. There it was contended that Ellis was a "domestic servant", therefore could not be an accessory in the crime under Article 78, P. C. That contention was sustained as sound, but Ellis was still held to have been an "accomplice witness". In this case Esther Turner testified to facts which if true would make appellant guilty of murder, but her former statements were to the effect that the killing was accidental. It is the contention here that Esther Turner can not be an accessory to the crime under Article 78, P. C., because she was the daughter-in-law of appellant. That contention appears sound, but under the undisputed facts as to her statements prior to the trial we see no reason for holding other than that she was an accomplice witness. See Conant v. State, 51 Tex.Crim. Rep., 103 S.W. 897; Eldridge v. State, 111 Tex.Crim. Rep., 14 S.W.2d 1036.
We commend the able district attorney who filed for the State the motion for rehearing. It shows much labor expended in the investigation of authorities to which we are referred. We have carefully examined them. It must be admitted that some are confusing by reason of expressions such as "accessories" and "accomplices" when it would have been more accurate to have designated the parties referred to as "accomplice witnesses".
Believing the correct conclusion was reached in our original opinion, the motion for rehearing is overruled.
Overruled.