We think it unnecessary to discuss all the points urged in appellant's motion for rehearing as they were all considered in our original opinion. We content ourselves by adverting only to the contention that the trial court should have instructed the jury that Ruth Mann was an accomplice witness as a matter of law, instead of submitting such question to the jury.
There is nothing in the record which raises any issue that said witness was a party to the killing of Guy by any act or ommission on her part at the time of or prior to the homicide. She learned of the killing from appellant after it occurred, and not until they had gotten some distance from where they were camped at the time of the killing. The fact that she did not voluntarily disclose such information to the authorities would not render her an accomplice witness as a matter of law. It is not in evidence that she at any time when interrogated by officers made to them false statements regarding the disposition by appellant of the pistols, watch or other property of deceased, or of the license plates removed by appellant from the automobile of deceased. Upon cross-examination of such witness it was elicited that she had made a written statement to the sheriff and district attorney; also, that she had testified as a witness before the grand jury in both Wood and Van Zandt counties. She was not asked about her testimony before said grand juries, nor is there any contention that in the evidence there given were any statements made by her favorable to appellant which might characterize her *Page 248 as an accomplice witness. As we understand the record, it is sought to show by admissions elicited from her in cross-examination that in the written statement referred to she told the officers certain things favorable to appellant, which would mark her an accomplice witness as a matter of law under the principles announced in Turner v. State, 117 Tex. Crim. 434,37 S.W.2d 747; Benavides v. State,123 Tex. Crim. 583, 60 S.W.2d 436; Orr v. State,124 Tex. Crim. 252, 61 S.W.2d 490; Littles v. State,111 Tex. Crim. 500, 14 S.W.2d 853; Tipton v. State, 72 S.W.2d 290. The opinion in the latter case noted makes it clear that a false denial to officers of knowledge that a crime has been committed does not necessarily make one so denying an accomplice witness as a matter of law, but there must ordinarily be an affirmative statement of fact by said witness which raises a defense for accused, or which indicates an effort to shield or protect accused and aid him in evading arrest or to escape prosecution. We conclude from the record that it was sought on cross-examination of the witness Ruth Mann to secure from her an admission that she had said things in the written statement referred to which sought to shift the killing of Guy from appellant to Bob Lockridge, and claim an alibi for appellant. The statement of facts shows the following questions to and the answers from the witness on cross-examination.
"Q. At the time you made this signed statement to Mr. Burnett and Mr. Dawson, you told them in that statement that Bob Lockridge came to your camp and gave a signal, blew his horn, gave a signal, that you were sleeping in that camp with Pierson Cantrell, is that right? A. No, sir.
"Q. In that statement, you said that Pierson Cantrell got up and went to see Lockridge and that Lockridge was there with an automobile and had the body of Frank Guy in it; isn't that right? A. No, sir.
"Q. You further testified that Bob Lockridge and Pierson Cantrell brought that body — I mean in that statement — they brought that body and buried it behind your camp, didn't you? A. Yes, sir.
"Q. You said both of them did that, didn't you? A. Yes, sir.
"Q. You further said in that statement that Bob Lockridge left and left all this stuff with Pierson Cantrell, didn't you? A. No, sir. *Page 249
"Q. In that statement, you said that Bob Lockridge had been in your camp the day before? A. No, sir. I did not say he had been there a few days before either. I did not say that Pierson Cantrell and Bob Lockridge had made an agreement for Bob Lockridge to go and steal the automobile and bring it to Pierson Cantrell to take and sell. I have testified before two grand juries.
"Q. You have never told this the same way any time you have told it? * * * A. In that written statement that I made, I did say that Pierson Cantrell was at the camp with me that night, the night in question on June 1, 1933, or May 30th. He was in camp with me that night."
On re-direct examination witness explained that the reason she told the officers that Lockridge helped appellant bury the body was because appellant had told her to make such statement. As said in our original opinion in substance, it does not appear from the record in what way the attempted connection of Lockridge with appellant in burying the body raised any defensive issue for appellant, or was calculated to aid him in evading prosecution. From the examination set out it seems clear that witness did not in the statement made to the officers claim that appellant was sleeping with her in their camp at the time Guy was killed. On further re-direct examination she testified in effect that she made no such statement to the officers. Upon the trial the witness testified that appellant left the camp about four o'clock in the afternoon and came back before "good daylight." It is reasonable to conclude from the entire record that whatever she testified on the trial or stated to the officers had reference to his return to the camp while it was still night; if the construction be given her testimony as urged by appellant then it would appear that the most that can be said about it is that on cross-examination she admitted making a statement to the officers about appellant being in camp on the night of the killing, and then on re-direct examination denied making such statement. It has been held many times if a witness testifies one way on direct examination and another on cross-examination it is the province of the jury to determine which time the witness was speaking the truth. So under all the facts before us we remain of the opinion that the court below was not in error in letting the jury determine the question whether Ruth Mann was an accomplice witness. *Page 250
Believing the case to have been properly decided originally, appellant's motion for rehearing is overruled.
Overruled.