dissenting.
I cannot agree to the affirmance of this conviction, and respectfully enter my dissent.
It is my opinion that the state’s witness Hillin is an accomplice witness and, there being no corroboration of his testimony, that the conviction cannot stand.
The complaining witness, Roy Hillin, was what might be termed a peace officer of considerable experience, having served as sheriff of Crosby County for a period of six years beginning January 1, 1941, and as a policeman in the city of San Antonio.
He was again elected to the office of sheriff of Crosby County at the November general election in 1950 and took over the duties of that office on January 1, 1951.
Hillin testified that while he was sheriff-elect, and on or about November 10, 1950, and December 16, 1950, appellant *163offered to bribe him not to enforce the liquor laws in the county, the exact nature of which bribery attempt is stated in the original opinion.
No one, save and except Hillin, heard appellant make the offer to bribe.
Hillin made no effort to report the matter to the grand jury at that time in session; he made no effort to file an accusation of any character growing out of the unlawful offer to bribe.
At the May term, 1951, the grand jury met and adjourned and Hillin made no report of the matter thereto. The grand jury met and adjourned at the November term, 1951, with Hillin still making no report of the matter to that body. So, also, was the same silence maintained while the grand jury was in session at the May term, 1952.
It was not until October, 1952, that Hillin gave public notice of the bribe that had been offered him and this was to the legislative investigating committee meeting in Amarillo. The notice to that body was followed by Hillin’s broadcast over radio.
It was not until the May term, 1953, that the indictment in this case was returned.
Upon cross-examination, Hillin was repeatedly pressed for some reason or explanation for his failure to arrest or to file against appellant for violating the law by offering him the bribe or to go before the grand juries and report to them the alleged violation of the law. No definite answer was given, or attempted. At one time, he gave this explanation:
“Well, I may have waited until the time got right, and everything got right; then I went before a Grand Jury.”
He made no effort to explain what was meant by that expression. At another time in his testimony, Hillin explained his nonaction by saying that “the pumpkin wasn’t ripe.” He made no explanation of what he meant by that term. Again Hillin was asked:
“I’ve asked you this three or four times, Mr. Hillin, I want you to tell these twelve men what occurred from November of 1950 until October of 1952, when you made your trip to Ama*164rillo, that made up your mind that the time was ripe to tell the public about George Aaron?”
His reply was:
“Well, all I know to tell the jury about it, I just thought the time had come that we was ready to do something about it, and I just went ahead.”
If Hillin gave any explanation of his conduct in failing to enforce the law, it is in the testimony I have here quoted.
The state made no effort to corroborate Hillin in any part of his testimony. He stands uncorroborated. In fact, the state rested its case solely upon Hillin’s testimony.
The question arises as to whether Hillin, by his admitted conduct, had placed himself in the position of being an accomplice witness in the crime he charged appellant had committed.
The sheriff of a county is, or should be, its chief law enforcement officer. The Constitution (Art. V., Sec. 23) required his election and enjoins the legislature to prescribe the duties of that office. In pursuance of that constitutional mandate, the legislature (Art. 41, C.C.P.) makes every sheriff a conservator of the peace in his county, and requires that he “shall arrest all offenders against the laws of the State, in his view or hearing, and take them before the proper court for examination or trial. He shall quell and suppress all assaults and batteries, affrays, insurrections, and unlawful assemblies. He shall apprehend and commit to jail all offenders, until an examination or trial can be had.”
This statute has been a law of this state since 1846.
When appellant made the offer to bribe, as testified to by Hillin, it became the duty of Hillin upon becoming sheriff of the county to then arrest him, for appellant had committed a felony in his presence and hearing. The least that he could have done was to institute proceedings to prosecute appellant for the felony he says was committed by him.
In keeping with Art. 41, C.C.P., and to insure the performance by a sheriff of the duties imposed upon him by law, the legislature passed Art. 230, Vernon’s P.C., which makes it unlawful for any sheriff to wilfully fail to discharge any duty im*165posed on him by law. The punishment affixed to a violation of the statute is a fine not to exceed five hundred dollars unless the particular act is made a felony by some other law. It will be noted that the only peace officer included within that statute is the sheriff. The law demands of the sheriff a higher fidelity to the duties of his office than any other peace officer.
According to Hillin’s own admissions, his wilful failure and refusal to arrest and proceed against the appellant made him guilty of violating that statute and trust. So, then, not only did Hillin fail to do his duty in arresting appellant for the felony he says was committed in his presence but he violated the law in not doing so.
The question arises as to whether Hillin’s conduct, together with the violation of the law and all the other facts and circumstances, constitutes him an accomplice witness. In this connection, it is well to keep in mind that for one to be an accomplice witness it is only necessary that he be connected with the crime by an unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense. Haynes v. State, 113 Texas Cr. R. 93, 18 S.W. 2d 1081; Benavides v. State, 123 Texas Cr. R. 583, 60 S.W. 2d 436; Blake v. State, 131 Texas Cr. R. 144, 96 S.W. 2d 1111; Stevens v. State, 133 Texas Cr. R. 333, 110 S.W. 2d 906.
Obviously, Hillin had no connection with the alleged offense prior to its commission. If he was connected with the offense, it is because his acts and conduct at the time of and subsequent to the commission thereof constitute him an accessory thereto.
An accessory is one who, knowing that an offense has been committed, conceals the offender or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. Art. 77, Vernon’s P.C. Our statute is not materially different from the common law offense of accessory after the fact.
From time to time, this court has had occasion to construe that portion of Art. 77, Vernon’s P.C., relating to the giving of aid to one who has committed an offense so that he might evade an arrest or trial.
In the early case of Blakeley v. State, 24 Texas App. 616, 7 S.W. 233, we said that any assistance given to one known to be *166a felon, in order to hinder his apprehension, trial, or punishment, is sufficient to constitute him an accessory.
In Parrish v. State, 134 Texas Cr. R. 187, 114 S.W. 2d 559, we said:
“It has been held under the foregoing definition that it is not essential that the aid rendered to the criminal be of such character as will enable the criminal to effect his present escape or concealment, but it is sufficient if it enables him to evade present arrest and prosecution.”
Blakeley v. State, supra, is one of the authorities cited as sustaining the rule announced.
The rule stated is in full force and effect. It is based upon sound logic and reasoning, because no man has or ought to have the legal or moral right to wilfully and deliberately, by any act of omission or commission on his part, aid a criminal to escape present arrest and prosecution for a felony which he and only he knows has been committed and who will escape all punishment for the crime so committed unless he acts.
It is apparent that the question as to whether one becomes an accessory to the commission of an offense by another by rendering aid or assistance in evading arrest or trial therefor must, of necessity, depend upon the particular facts and circumstances of each case.
It is with this idea in view that I summarize the facts:
Hillin was the sheriff of the county; he was experienced in the duties of that office. He had known at the very moment appellant offered him a bribe as sheriff-elect of the county that a felony had not only been committed in his presence but directly involved him, but for which the felony was not and could not have been committed. He knew and was charged with notice that after he became the chief law enforcement officer of the county it was his duty to arrest appellant and to charge him with the felony which had been committed. Hillin had been charged with notice that if he failed to do his duty as sheriff in arresting an offender he, himself, would be violating the law. He knew that only he and appellant had knowledge of the felony which the latter had committed in his presence and that, until he made known what had happened and the crime committed, appellant would not be arrested or brought to trial or punished therefor.
*167When taken into consideration with the further fact that Hillin gave no reason or excuse for his failure to do his duty and wholly evaded any explanation thereof, all these facts must, of necessity, point to but one thing — and that is that Hillin, by his conduct for a period of approximately two years and by his failure to divulge the information, knowingly and intentionally prevented appellant’s arrest and trial for a felony that he and only he (Hillin) could bring to light. No construction can be given to such conduct other than that Hillin, for some reason known only to him, deliberately and wilfully refused to perform the duties of his office and, by such refusal, knowingly aided appellant in evading arrest and trial for a felony.
The fact that Hillin finally made known appellant’s crime and proceeded to try to get him indicted does not exonerate or excuse him of the crime he had committed two years prior. To the contrary, it shows guilt on his part and opens wide the field of conjecture as to what caused the “pumpkin” to get “ripe,” so that he might do his duty as he should have done when the offense was committed. Hillin’s admitted conduct is such as to cause wonder as to what the “pumpkin” was to which he referred and what caused it to be so long in getting “ripe” or to ripen at the particular time it did.
The answer must remain the subject of wonder and conjecture, for Hillin, though repeatedly pressed for an answer, refused to give one.
Although Hillin made no effort to explain his silence and non-action, I note that my brethren, in the opinion overruling appellant’s motion for rehearing, ascribe to Hillin an excuse when they say: “We have concluded that in a case such as this the sheriff had the right to delay the initiation of prosecution for a reasonable time in order to ferreti out coroboration of his own testimony, if he could.”
If there is any evidence in this case that authorizes such conclusion, I have not found it. Certainly Hillin did not say so.
The danger in the statement of my brethren lies not in the fact that it is unauthorized by the record but because it justifies the sheriff in failing to perform the duties of his office by, upon, and for facts which, in law, constitute no defense to his violation of the law.
*168My brethren, in their opinion, suggest another reason for exonerating Hillin in his conduct. This is that he said he talked with his deputy, with the district attorney, with the district judge, with the superintendent of the Texas Liquor Control Board, and with the sheriff of another county.
Of course this record does not reveal what Hillin told those officers. I am unwilling to say that he told them about the offer to bribe, because I cannot bring myself to believe that they would have condoned Hillin’s conduct in delaying appellant’s arrest and prosecution had he told them of such offer to bribe. To my mind, it is altogether reasonable and in keeping with the character and integrity of those officers that I say that had Hillin told them about the offer to bribe they would have advised him to follow rather than to disobey the law.
Regardless of what Hillin did or did not tell those to whom he said he talked, the fact remains, nevertheless, that he did not do his duty or fulfill the obligation imposed upon him. After all, it was Hillin’s responsibility to bring about appellant’s arrest and prosecution if appellant was guilty of doing that which Hillin said he did.
By education, tradition, and respect for law and order, the people of this great state rightly look upon the office of sheriff as one of high honor and responsibility because it represents and is the enitome of law and order in the county. It is to that office that the people look first for a defender and protector against those who would violate our laws and by their acts of criminality would destroy the lives, homes, and possessions of our citizens. Those who are chosen by the people to fill the high office of sheriff assume that office with full knowledge of such trust and the duties imposed thereby.
These facts are adverted to in order to demonstrate that the witness Hillin was more than an ordinary citizen, for he was sheriff of the county. As a witness upon the stand testifying in this case, he represented not only the high position of honor, trust, and integrity with which the people have endowed the office of sheriff, but he was also the representative of law and order in the county.
If a criminal was to be aided by some person in escaping present arrest and prosecution for a felony, the people had a right to expect that the sheriff of the county was the last per*169son who would be guilty of so doing. That, however, is exactly what this record shows the sheriff did.
I ana convinced that, under the facts of this case, Hillin was an accomplice witness and that, upon the uncorroborated testimony of the accomplice, this appellant should not go to the penitentiary and serve the punishment here imposed.
Thus, my dissent.