On the former appeal this case was reversed because of the failure of the charge of the court sufficiently to explain the term “ accomplice,” when that term, in its application to the statutory rule of evidence with regard to corroboration, embraces principal offenders or parti cepes criminis. 4 Texas Ct. App. 46. A second trial in the court below has resulted in a second conviction of appellant for murder of the first degree and a like punishment as before,—imprisonment for life in the penitentiary being again assessed.
There are only two questions necessary to be discussed on this second appeal, viz.: first, the charge of the court; and secondly, the. sufficiency of the evidence. The indictment, in short, charges a murder upon express malice aforethought, with deadly weapons. The evidence tended to disclose a robbery as the motive inducing the homicide. With a view to this aspect of the case, the court instructed *489the jury “ that all murder committed in the perpetration or in the attempted perpetration of the crime of robbery, is murder in the first degree ; ” and again: “ Any person within this State who shall wilfully and maliciously kill another, with the fraudulent intent on his part to take from the person or possession of the deceased any property, with intent to appropriate the same to his own use, shall be deemed guilty of murder in the first degree.” Before giving these instructions, the court had charged the statutory definition of murder, and had explained in a very concise but comprehensive manner the meaning of the terms “ express malice.”
It is insisted that because the indictment did not charge that the murder was committed in the perpetration or attempt at the perpetration of robbery, therefore the charge of the court was erroneous in presenting that issue; because that issue was foreign to the case set forth in the indictment, and rendered the defendant liable to be punished on a state of case of which he was not apprised by the allegations in the indictment. We are referred to Tooney’s Case, 5 Texas Ct. App. 163, in support of this position. The two cases are by no manner of means analogous, but are' in every respect essentially different. Tooney was charged with murder by poison ; this appellant is charged, in the ordinary form, with a murder committed with express malice aforethought. The former is a special, the latter a general charge. The distinction between the two is the same which has always obtained in pleading, viz., that if a specific substantive matter be alleged, the pleader will be confined to that matter, and cannot introduce in support of it other and distinct grounds, of which the defendant was not put upon notice nor advertised they would be relied on in support of his conviction. If a murder is charged to have been committed by poison, then that, and that alone, is the issue presented to the defendant; and so with murder committed in any of the other specific exceptional modes designated in *490the statute. Penal Code, art. 606; Roscoe’s Cr. Ev. (7th ed.) 720; Moo. C. C. 113.
Had the indictment in Tooney’s case alleged that the murder was committed by poison and in the perpetration or in the attempt at the perpetration of robbery, the indictment would have been good, and would have covered that phase of the case, and the charge of the court held to be erroneous would have been the law of the case. It is a well-established rule of pleading that an indictment may charge, conjunctively, acts constituting the offence which are stated disjunctively in the statute. “ This is always proper and allowable where a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a stage in the same offence.” Phillips v. The State, 29 Texas, 233; Lancaster v. The State, 43 Texas, 519; Hart v. The State, 2 Texas Ct. App. 39. But, having charged Tooney simply with murder by poison, the prosecution was held to establish a murder by poison, and one committed in no other mode. Warrington v. The State, 1 Texas Ct. App. 168.
In the case at bar, however, as we have stated before, the indictment does not charge the murder to have been committed in any of the exceptional modes named in the statute ; it is an indictment charging in the general and ordinary forma murder upon “ express malice aforethought.” Malice is as much the essential ingredient of murder by poison, or robbery, or any other of the specific modes, as •it is of murder by violence done to the person. The People v. Enoch, 13 Wend. 159; The People v. White, 22 Wend. 176; 37 Wend. 43; 39 Wend. 245; The People v. Keefe, 40 N. Y. 348; The People v. Thompson, 41 N. Y. 1.
But when express malice is alone charged, the pleader may show in support of the indictment not only violence done to the person, but robbery, or an attempt to perpetrate robbery, or any other of the specific exceptional modes named ; because they are not inconsistent with, but, on the *491•contrary, would be legitimate for the purpose of establishing the express malice aforethought charged. When a murder by violence and upon express malice aforethought is charged, then the prosecution may show, as part of the res gestos, that it was also done (if such were the fact) in the perpetration, or in the attempt at the perpetration, of either arson, rape, robbery, or burglary. This rule was announced by this court in the first case wherein the question was raised. Mitchell v. The State, 1 Texas Ct. App. 194. And see also Pharr v. The State, 7 Texas Ct. App. 472.
It follows that, the evidence in this case being of a character tending legitimately to show that the murder was committed in the perpetration or in the attempt at the perpetration of robbery, the court did not err in the portion of the charge complained of, but the same was a part of the law as made necessary by the evidence adduced in the case.
■Addressing ourselves to a consideration of the second ground relied upon for a reversal of the judgment,—the insufficiency of the evidence, —we have examined the testimony exhibited in the statement of facts with great care, to ascertain how far, if at all, the evidence of Emsley Harris, the self-confessed conspirator, who turned State’s evidence, has been corroborated by other evidence tending to establish appellant’s guilt.
As was said by our Supreme Court in the leading case of Coleman v. The State: “ The rule of law forbidding a conviction on the testimony of an accomplice unless corroborated by other testimony tending to connect the defendant with the offence committed, is, under the statute, positive and peremptory. Pasc. Dig., art. 3118. However much a jury may be disposed to credit the accomplice, the defendant cannot be legally convicted unless the evidence of the accomplice be confirmed in some material matter tending to show the defendant’s guilt. To allow convictions to stand where the corroboration is only in immaterial matters, or in matters affecting other parties, and not the party on trial, *492would be to violate both the letter and spirit of the statute, and to disregard those precautionary rules which experienced and wise jurists have deemed it necessary to adopt in order to guard against erroneous convictions, based on evidence unreliable because coming from a corrupt source.” (1 Greenl. on Ev., sect. 381, note.) 44 Texas, 111; Gillian v. The State, 3 Texas Ct. App. 132.
The evidence of an accomplice must be corroborated, not merely as to the commission of the crime, but also by evidence of the fact that the accused was engaged in its commission. Dill v. The State, 1 Texas Ct. App. 278; Davis v. The State, 2 Texas Ct. App. 588. “ The corroborating evidence must of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offence. It need not, as a matter of course, be sufficient to establish his guilt; for in that event the testimony of the accomplice would not be needed. The purpose of the statute was to prohibit a conviction unless there was some evidence entirely outside of that of the accomplice which, of itself arid without the aid of the accomplice, tends at least to connect the .defendant with the offence committed.” Hoyle v. The State, 4 Texas Ct. App. 239; Jones v. The State, 4 Texas Ct. App. 529; Jones v. The State, 7 Texas Ct. App. 457; Myers v. The State, 7 Texas Ct. App. 641.
If we take the foregoing rules as our guides, and apply them to the facts in this case, then we are constrained to say that the prosecution, in our opinion, has failed to make out the case against this appellant. If the testimony of the accomplice, or rather the particeps criminis, be left out of the case, then there is not a particle of testimony inculpating defendant in the murder of Robert Dickey. When considered in connection with the other testimony, whatever of corroboration there is found to exist relates to matters wholly immaterial, and where they affect the prisoner more than other parties, they do not affect him with regard to the *493main fact, — the commission of the murder. Defendant may be guilty, but the State only demands the punishment of a citizen when his guilt has been clearly established according to the forms and rules of law which she has prescribed for ascertaining his guilt.
Because the evidence, independent of the testimony of Harris, the particeps criminis, does not tend to connect the defendant sufficiently with the crime alleged to have been committed, the judgment rendered in the court below is reversed and the cause remanded for a new trial.
Reversed and remanded.