The judgment herein was affirmed at the Austin term, and is now before us on motion for rehearing. The grounds of this motion are practically the same as those urged in the motion for new trial in the trial court. The original opinion is not criticised in the motion. The motion urges and reiterates the motion for new trial. We have reviewed the questions again, and find it unnecessary to further write on any of them, except that which brings in review the court's charge in reference to accomplice testimony. A discussion of this question was omitted from the original opinion, because we did not think it had any merit; but appellant yet insists that charge was erroneous. This portion of the charge reads as follows: "If you believe from the evidence that C.L. Swackhammer was killed by being shot with a pistol or other weapon in the hands of some one, and the person committing the same committed the offense of murder, and if you further believe from the evidence that the witness Jordan Thompson knew or believed beforehand that such killing would take place, and willfully concealed such knowledge or belief, or that he aided in the commission of such homicide or in any manner advised or encouraged another to commit the same, or that he knowingly shared in the money taken from said Swackhammer on the occasion of his killing, if he was killed, and if any money was taken from him, then you will find that said Jordan Thompson was an accomplice to said homicide, and if you so find, then you are instructed that you can not convict defendant upon the testimony of said Jordan Thompson, unless you find that said testimony of said Jordan Thompson has been corroborated by other evidence, tending to connect defendant with the commission of said offense; and unless from all facts and circumstances in evidence, if any, and under the instructions given you in this case, you further believe beyond a reasonable doubt that defendant is guilty, and such corroboration of said testimony of said witness, if any, is not sufficient, if you believe it merely shows the commission of said offense, without connecting defendant with the commission of the same." The criticism of this charge by appellant is as follows: "Said charge not being the law, in that it makes the question of accomplice depend upon the question as to whether or not the killing constituted the offense of murder, whereas Jordan Thompson would have been an accomplice, if he had had any guilty connection with the unlawful killing of Swackhammer, whether it would constitute the offense of murder or not, and said charge is vague, uncertain and meaningless." The party who killed Swackhammer was guilty of murder. The court charged both degrees of murder, and as said in the original opinion, it was correct in view of the fact that the case was largely one of circumstantial evidence, that murder in second degree was given in charge; and we commend the court's action in charging upon murder in the second degree in this character of case. *Page 34 There were no facts in evidence indicating a lesser degree of culpable homicide than murder; and in our judgment it indicates a homicide in the perpetration of robbery. The charge in regard to accomplice testimony is more liberal than is required by law. The jury were instructed that if the witness Thompson knew or believed that Swackhammer had been killed and concealed his knowledge or belief, either or both, this would constitute him an accomplice, and it would be necessary to corroborate his testimony. This was more than favorable to appellant. Under our decisions, the mere knowledge or belief that the offense was to be or had been committed, and the concealment of such fact or facts would not render the witness an accomplice. He must have some guilty connection with the crime. It is true, as contended by appellant, that a witness would be an accomplice, if he had any guilty participancy in the homicide or the crime under investigation. The only offense here tried, or degree of offense, was murder, and the law with reference to accomplice testimony was charged pertinently and favorably. In this there was no error, because this was the only offense being investigated. Manslaughter was not an issue in the case, nor was any inferior degree of homicide suggested by the facts or charged by the court. It is the duty of the court to charge the law applicable to the case made by the testimony, pertinently and accurately; and when this has been done the full measure of the law has been met. If manslaughter had been an issue in the case, and the court had limited the action of Thompson only to the offense of murder, then there might have been ground of complaint. But there was no other issue before the court except murder upon which a conviction could be predicated. If defendant was guilty at all, he was guilty of murder, and the facts suggested no other theory of homicide. There was no error in this portion of the court's charge. There was no exception to this charge on the ground it is on the weight of the evidence, therefore that question is not discussed, for under the terms of article 723, Code Crim. Proc., it is waived.
There is also a criticism that the verdict of the jury is indefinite. The conviction was for murder in the first degree under the first count in the indictment, which charged appellant with murder upon express malice. The second count charged murder in the perpetration of robbery. The latter count was not submitted to the jury. This was tantamount to an election by the State. Appellant's contention is this, if the homicide occurred at the hands of appellant, the facts show or tended to show that the killing occurred after the robbery; and that the jury might have been misled by the charge if appellant had no design to kill but only to rob when he waylaid deceased and got in the wagon with him, and that he may have killed subsequently to the robbery only for the purpose of destroying evidence of deceased against him for the robbery case; that he then could not be guilty of murder upon express malice, and the jury may have taken the fact of the robbery against him as evidence of express malice. If, as a matter of fact, appellant robbed deceased by the use of the pistol and killed him to destroy his testimony *Page 35 and the evidence of his crime of robbery, it would be a most cogent circumstance showing malice. It would be a deliberate killing for the purpose of covering up the crime of robbery. The plan concocted by the murderer of the deceased was well laid, premeditately entered into and deliberately executed. The facts will justify no other conclusion. The substance of the question raised by appellant in this connection was thoroughly adjudicated and discussed in Sharp v. State, 17 Texas Crim. App., 486, and decided adversely to his position; and that case has been uniformly followed. We deem it unnecessary to go into a further discussion of the question. Finding no reason to change our former views, the motion for rehearing is overruled.
Motion for rehearing overruled.