Appellant was convicted, under article 309 of the Penal Code, for engaging in an unlawful assembly, and prosecutes this appeal. *Page 631
Motion was made in arrest of judgment, on the ground that the indictment did not sufficiently charge the offense. We have examined the same carefully, and, in our opinion, it does charge an offense. It is different from the indictment in the Bradford Case, post, p. 632, which is a companion case to this, in that it does charge that the prosecutor, Louis H. Ernst, was then and there engaged in running a certain farm, and was then and there engaged in employing Mexican laborers on his farm, etc.
The only question that requires to be considered is the sufficiency of the evidence. We have examined the record carefully in this respect, and in our opinion it fails to make out a case against appellant, because there is no evidence, outside of the accomplice testimony, tending to connect appellant with the commission of the said offense. The accomplices gave a detailed account of the meeting, and showed that its purpose was illegal, as alleged in the indictment, and that appellant attended said meeting, and there is some testimony, outside of the accomplices', tending to show that appellant was present at said meeting. But we fail to find in the record, outside of the accomplices' testimony, any evidence tending to show the character of the meeting, that it was for the illegal purpose expressed in the indictment. This meeting was on the 30th of April, 1898, and, according to the accomplices, one of the purposes of said meeting was to run the Mexican laborers out of that neighborhood, and to that end to post notices on the premises of certain persons employing such labor on the 15th of May following. It is contended that the fact that such notices were posted on the premises of certain persons, among them that of the prosecutor, on the 15th of May, is corroborative testimony; but we can not so regard it. No witness testifies to seeing these notices, posted, and there is absolutely no testimony tending to show that notices were posted by the parties who attended said meeting and in pursuance thereof. The bare fact that "White-Cap notices" were posted on certain premises, without any testimony as to who posted said notices, we can not regard as evidence tending to show that said notices were posted by the parties who attended said meeting, and in that respect corroborate the accomplices as to the purposes for which said meeting was held. And, in the absence of some proof, we can not presume that these notices were posted by said parties, and that this presumption supplements the proof made by the accomplices. Because, in our opinion, the evidence does not sustain the conviction, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 632