The sole ground set up for rehearing is that the State's witness Bert Taylor was an accomplice and that because thereof appellant could not be convicted on his testimony even though properly corroborated by other testimony because he was not a credible witness.
No such ground was urged in the lower court. Appellant did not object to the court's charge because of its failure to charge that said witness was an accomplice or that he had to be corroborated, nor did he ask any special charge submitting any such issue or anything with reference thereto.
Mr. Branch, in his 1 Ann. P.C., page 360 et seq., lays down correct propositions supported by numerous authorities. One is that in order to be an accomplice witness such witness must be criminally connected with the crime on trial. (Sec. 702.) Again, he says: "The mere concealment of a crime, or the mere concealment of knowledge that a crime is to be or has been committed does not make the person having such knowledge an accomplice," citing a large number of cases. (Sec. 705.)
No evidence in this case shows, or tends to show that said witness Taylor was a party in any sense to the perjury of which appellant was convicted, nor does it show his participation in any way with the arson of which appellant was originally convicted, as explained in the original opinion. The testimony simply shows that said witness swore that appellant, before the arson was committed, told him he was going to burn the house, and that after he had burned it he told him he had done so. Before appellant burned the house he told said witness, in substance, that he wanted to go home with him that night and asked *Page 238 him to wait for him at a given point where he would later meet him and go home with him. That said witness did wait for him at the point indicated; appellant met him there and went some miles in the country to his home with him and stayed the balance of that night, they both returning to Graham the next morning. This did not make him an accessory. In other words, the testimony shows that said witness was not an accomplice of appellant to either arson or the perjury of which he was convicted in this case. His knowledge that appellant was going to commit arson and did afterwards do so would in no sense make him an accomplice so as to make him an incredible witness in law.
The motion is overruled.
Overruled.