(dissenting).
The evidence is insufficient to corroborate the testimony of the accomplice and admitted arsonist, Stewart.
If the evidence of the accomplice is eliminated from con-*499si deration and the evidence of other witnesses examined (as in the rule announced in Story v. State, 153 Texas Cr. Rep. 541, 221 S.W. 2d 917) to ascertain if there be inculpatory evidence —that is, evidence of incriminating character which tends to connect the defendant with the commission of the offense — the insufficiency of the corroboration is established.
Outside of and other than the testimony of the accomplice, it is sufficiently shown that the offense of arson was committed by someone setting fire to the building with the use of kerosene, and that about 9:45 o’clock, p.m., prior to the discovery of the fire thirty minutes later, the accomplice and the appellant went to a grocery store and purchased ten cents’ worth of coal oil in a half-gallon milk bottle which the accomplice had with him. The witness who waited upon them said that “It was John Henry that purchased the coal oil and John Henry is the one that paid me,” the reference being to John Henry Stewart. After completing the purchase, the accomplice Stewart and the appellant left the grocery store togther.
Appellant is not seen after he left the grocery store.
Approximately twenty feet from the corner of the building where the fire started, pieces of a broken milk bottle were found in a creek bed. These pieces smelled of kerosene and one of the pieces was identified as being the neck of a half-gallon milk bottle.
The witness who sold the coal oil was unable to identify the broken pieces as being any part of the bottle into which he had poured it.
Some matches which smelled of kerosene were found at the corner of the building where the fire started.
The foregoing is all the testimony relied upon to corroborate the accomplice witness.
The accomplice witness’ further testimony, uncorroborated, was that after leaving the store with the coal oil he and appellant went to the building; that after he (Stewart) had poured the kerosene on the building he struck a match and applied it to and set fire to the building; and that appellant was present and assisted him in the commission of the crime. The accomplice also testified that he threw the milk bottle into a ditch *500after the fire started. He was unable to say whether the bottle broke when he did so.
In its final analysis, then, the state relies to corroborate the accomplice upon proof that appellant was present in the grocery store when the kerosene used to set fire to the building was purchased and that he (appellant) left the grocery store with him, about a half hour before the fire, carrying the bottle of oil.
The finding of the broken milk bottle served only to corroborate the accomplice’s testimony that he burned the building with the coal oil purchased at the grocery store. Other than that fact there is no testimony besides that of the accomplice which placed appellant at the scene of the fire or connects or tends to connect him therewith.
The absence of any corroborating evidence placing appellant at the scene of the fire or showing motive for the crime is in appellant’s favor.
The test for determining whether an accomplice witness is corroborated is that the evidence relied upon must go further than to merely show the commission of the offense; it must also tend to connect the defendant with its commission. Corroboration means more than mere suspicion or what-might-have-been; it must tend to establish the guilt of the accused.
The corroborating evidence here relied upon does not meet the demands of the law and it is therefore insufficient. See Story v. State, supra, and authorities there cited.
I respectfully dissent to the affirmance of this case.