The appellant was tried and convicted of the offense of theft of a cow and his punishment was assessed at confinement in the state penitentiary for a term of two years.
The appellant's main contention is that the accomplices, *Page 15 who testified for and on behalf of the State, were not sufficiently corroborated to justify and sustain his conviction. The testimony offered by the State shows that Dan Hamilton, who resided three miles east of Moran, lost a cow on the night of January 23, 1935; he missed his cow the next morning and immediately reported the matter to the officers who began an investigation with the view of ascertaining who committed the offense. Brooks, who was a neighbor of Hamilton, testified that he, the appellant, and Gene Kennison butchered the cow and divided the meat; that appellant and Kennison came to his home in the afternoon and suggested that if Brooks would steal a cow, they would return to their homes, secure the necessary knives and tools to butcher the cow; that Brooks agreed to do so, whereupon the appellant and Kennison left for their homes but soon returned with knives and a saw; that during their absence, he, Brooks, went into Hamilton's pasture, drove a cow into his lot where they slaughtered it that night; that one hind quarter and one fore quarter was retained by Brooks while the other meat was placed in the turtle back of appellant's car and taken away by appellant and Kennison. Brooks' wife, and his two daughters, gave similar testimony and in addition thereto testified that the next morning when they learned that the officers were coming to make an investigation of Brooks' premises they loaded the meat into an automobile, carried it about one half mile from the house and hid it in some bushes. After Brooks was arrested he made a written statement to the county attorney, duly verified, in which he said that no other person was connected with him in the commission of the offense charged, thereby exonerating appellant and Kennison. The State sought to corroborate the accomplices by the testimony of one Ed Johnson who testified that he believed that he stayed at appellant's home on the night that Hamilton's cow was stolen and ate breakfast there the next morning; that appellant and Kennison came home about seven or seven thirty and left again about eight o'clock; that appellant's wife took something out of the house and carried it to the car which looked like a saw; that he wouldn't swear it was a saw; that the next morning in passing by appellant's car he noticed a few specks of blood and meat on the trailer hitch, but he would not swear it was blood; that he did not stop to examine it; that it looked like blood to him. On cross-examination he was uncertain just what night he spent at appellant's home; he said that sometimes he was at appellant's home and sometimes at Clayton Whitefield's home; that he *Page 16 could be mistaken about the day on which appellant and Gene Kennison came to appellant's home; that he was not positive about it being blood and meat on the trailer hitch of appellant's car.
The testimony on behalf of appellant shows that on the 23rd of January, 1935, appellant was at Henry Compton's home where they were killing hogs; that they killed three hogs in which the appellant assisted; that they hauled the dead hogs from slaughter pen to the house on the bumper of appellant's car. There was also testimony showing that appellant butchered hogs and cattle practically every week and sold them in the town of Breckenridge. This constitutes, in substance, the entire testimony.
The court instructed the jury that Brooks, his wife, and daughters were accomplices and that they could not convict the appellant on the testimony of the accomplices alone unless they were corroborated by other testimony tending to connect the defendant with the offense charged. The only question presented for our consideration is whether or not the testimony of the accomplices is corroborated by other evidence on a material matter tending to connect the defendant with the offense charged. The evidence offered by the State corroborative of the testimony of the accomplices as herein above related tending to connect the defendant with the theft of a cow is too meager, uncertain, inconclusive, and unsatisfactory to warrant the conviction. We do not feel justified in permitting the conviction to stand on such uncertain corroborating testimony.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.