(dissenting).
The principal question presented by this appeal is whether the evidence is sufficient to corroborate the testimony of the accomplice witness James Frederick Franks. This witness was jointly indicted with the appellant, but prior to his testimony was offered immunity by the prosecution.1 Franks’ testimony made out a complete case against the appellant. On cross examination, Franks, age 38, admitted he had a mental condition from the time he was 8 to 11 years old; had been in various mental institutions; had been convicted of at least five crimes; had been under care of psychiatrists at various prisons; had been in a mental institution earlier in the year at Raleigh, North Carolina, and was taking two Thorazine tablets a day at the time of the trial.
The court charged on the law relating to accomplice witnesses and instructed the jury that Franks was an accomplice witness, as a matter of law. The jury, by its verdict, obviously found Franks’ testimony to be true. The question presented is whether, as a matter of law, the evidence is sufficient to corroborate such testimony.
Article 38.14, Vernon’s Ann.C.C.P., provides,
“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.’’ (Emphasis supplied.)
In Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968), this court said:
“The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view 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. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.” (Emphasis supplied.)
See also Reynolds v. State (Tex.Cr.App. 5-3-72, No. 44,841).
Therefore, it is clear that evidence, independent of the accomplice witness’ testimony, which merely shows the commission of the offense, or which, although corroborative in some respects of the accomplice witness’ version, is not of incriminating character tending to connect the accused with the crime, is insufficient to sustain a conviction.
As stated in Umsted v. State, 435 S.W.2d 156 (Tex.Cr.App.1968),
“ . . . The accomplice may state any number of facts, and these facts may all be corroborated by the evidence of other witnesses; still, if the facts thus corroborated do not tend to connect the defendant with the crime, or if they do not point pertinently to the defendant as the guilty party or as a participant, this would not be such corroboration as is required by the code. ...”
See also Odneal v. State, 117 Tex.Cr.R. 97, 34 S.W.2d 595 (Tex.Cr.App.1931).
With this background, it is noted the majority states that the evidence reflects that:
(1) the body of the deceased was found at 9:30 P.M. on April 2, 1970; (2) the *917cause of death was strangulation; (3) the body had not been at this location at 4:00 P.M. on that day; (4) a west hound freight train had stopped at 7:10 P.M. on that evening at the point where the deceased’s body was found; (5) it appears that this was the only train stopped at that point on that date; (6) the ballast beside the tracks at the place where the deceased was found was not disturbed; (7) this same train was stopped at Alpine approximately eight hours later; (8) appellant and Franks were found in a boxcar at that time; (9) samples of human blood were found inside the boxcar; (10) a receipt bearing the deceased’s name was found inside the boxcar; and (11) broken wine-bottle glass and blood-stained paper were found both in the boxcar and at the place where the body was found.”
With the possible exception of No. (8), when this evidence is carefully considered, it reflects merely the commission of the offense or is corroborative of part of the accomplice witness’ story, but it is not of an incriminating character tending to connect the accused with the crime. This does not meet the test required by law.
As to item No. (8), it is true that approximately eight hours after the train in question stopped near the point where Key’s body was found, and approximately 250 miles away, the appellant and the accomplice witness were found together in the same boxcar.
In certain instances, association with the accomplice witness may be corroborative of the testimony of an accomplice. It has been held though that it is not sufficient corroboration merely to show that they were together shortly before or shortly after the commission of the offense. 23 C.J. S. Criminal Law § 812(4)(g), p. 119; Crawford v. State, 149 Tex.Cr.App. 581, 197 S.W.2d 575 (1946), and other Texas cases cited in 23 C.J.S. Criminal Law § 812 (4) (g), supra.
In the instant case, there was no independent proof that the accused was at or near the scene of the crime at or about the time of its commission. Cf. Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340 (1957).
Outside of the accomplice witness’ testimony, there is no showing how long the appellant had been on the 50 car train when it made its unscheduled stop at Alpine approximately 250 miles from the point where the body was discovered and over approximately eight hours after such stop.
The appellant was not in possession of any items shown to belong to the deceased nor was there any blood on his clothing even though his blue shirt was examined by a chemist. There was no evidence of any marks or bruises on appellant to indicate he had been involved in a fight or struggle. While samples of human blood were found inside the boxcar and on and near the body, the blood type was not shown so as to connect the samples. Nor was the blood type of the deceased revealed.
While broken wine-bottle glass was found in the boxcar and near the position of the body, there was no showing the glass found in one place was the same color or similar in appearance, etc. as that found in the other place.
Although nearly all the items found inside the boxcar and on or near the body were submitted for fingerprint examination, there was no testimony offered concerning the same.
Dr. Ruben Santos who performed the autopsy did not testify how long the deceased had been dead at the time of the body’s discovery or at any other time.
There is nothing outside the accomplice witness testimony to show that the appellant was with the deceased at or about the time of the alleged homicide. See Andrews v. State, 106 Tex.Cr.R. 366, 292 S.W. 217 (1927).
*918“For the purpose of corroborating testimony which is considered to take human liberty, something stronger is required than mere suspicion.” Almazan v. State, 140 Tex.Cr.R. 432, 145 S.W.2d 576, 579 (Tex.Cr.App.1940).
See also Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311 (1958).
Applying the test we are required to apply I can find no independent evidence of an incriminating nature tending to connect the appellant with the commission of the alleged crime so as to be sufficiently corroborative of the accomplice witness’ testimony.
I respectfully dissent.
. The record is not clear whether the court acted upon such offer of immunity.