This prosecution is by indictment for an attempt at subornation of false swearing, and an attempt at subornation of perjury. It is based on article 319, P.C., and contains two counts. The allegations in each count are identical except that in the first count the following allegation is made: "but which said oath was not then and there required by law nor made in the course of a judicial proceeding," and in the second count instead of the words last above quoted the indictment contains the following: "and was intended to be used during the course of such judicial proceeding in said District Court of Bexar County."
The count charging an attempt at subornation of perjury was not submitted to the jury. A conviction was had upon the count charging an attempt at subornation of false swearing. The court confused the two counts; that is, in the first paragraph of the charge he used the *Page 339 following language: "In this case the defendant stands charged by indictment with the offense of attempting to induce one Earl Marshall to swear falsely, as charged in the second count in the indictment." And further says: "As heretofore related to you, and as charged in the second count of the indictment herein, for which the defendant is now upon trial, which said offense is defined as follows:" In defining the offense submitted to the jury, and in submitting to them the facts under which a conviction could be had, he defined the offense of subornation of false swearing, describing it as contained in the second count of the indictment, though as a matter of fact it was contained in the first count of the indictment, the second count relating to the offense of subornation of perjury.
The substantial allegations upon which a conviction was sought was appellant's attempt to induce Earl Marshall to make an affidavit in writing as follows: "For all of the above reasons I testified falsely against Sam Cunningham in the Forty-fifth District Court when he was suing the S.A. A.P. Ry. Co. for damages for personal injuries to himself and through the solicitation of representatives for the San Antonio Aransas Pass Railway Company I was induced to testify against Sam Cunningham in his suit for damages against the San Antonio Aransas Pass Railway Company," and that the said Marshall gave certain testimony on the trial mentioned, which testimony was set out in the indictment and which the indictment alleged was true. Earl Marshall was used as a witness for the State, and testified, in substance, that his testimony set out in the indictment given at the trial was true. He also testified that the appellant and his half brother, Harville, agreed to pay him $250 to make, sign and swear to the affidavit set out in the indictment, and that they exhibited the money. That he did not sign the affidavit or swear to it; that it was not true. Appellant testified that, entertaining the belief that Marshall had perjured himself in the Cunningham case, he was willing to give him $200 to sign the affidavit acknowledging that he had perjured himself in the Cunningham case, appellant claiming, however, that he did not undertake to have Marshall make a false affidavit.
Exceptions were reserved to the court's charge because it failed to tell the jury that the appellant could not be convicted upon the testimony of an accomplice unless it was corroborated, and also submitted several special charges seeking to supply the omission in the court's charge. There were other witnesses who the testimony showed were engaged in an effort to trap the appellant into committing the offense, or to catch him in the act if he did do so. Appellant insists that the testimony of these witnesses was subject to the legal qualification applying to accomplice testimony, and also insists that Marshall's testimony required a charge on that subject. Appellant's fifth special charge contained the proposition that a conviction could not be had upon the uncorroborated testimony of an accomplice, and undertook to have the question as to whether there was accomplice testimony *Page 340 determined by the jury, and special charge No. 8 was to the same effect in substance.
The writer does not believe that the indictment was bad, nor that the mistake of the trial judge in designating the numbers of the counts was calculated to confuse the jury to the extent that it would require a reversal of the case. The error should have been corrected in response to the appellant's objection to the charge calling attention to the mistake. It does appear, however, from the standpoint of appellant, and from his testimony, that at least the witness Marshall was in the attitude of an accomplice, and that the question as to whether he was an accomplice or not should have been submitted to the jury under appropriate instructions with the information that a conviction could not be had upon his testimony alone without corroboration such as was required by law on accomplice testimony; and, in the judgment of the writer, neither special charge No. 5 nor No. 8 would have accomplished this purpose. Article 801, C.C.P., gave the appellant the right to such a charge if the facts were such as to show that Marshall was an accomplice, or was such as to raise the issue as to whether he was an accomplice or not. He gave very damaging testimony against the appellant. Appellant was charged with attempting to induce him to make a false affidavit. Marshall's testimony would go to show that the appellant did make the attempt with knowledge of the fact that the affidavit he was trying to procure was false, and that appellant agreed to pay him for making it. Appellants' testimony was to the effect that Marshall agreed to make the affidavit in consideration of some money. The testimony shows that the affidavit was written and that the money was on hand in possession of appellant, and exhibited to Marshall; that Marshall was in the act of signing it when the officers appeared and made the arrest. If the affidavit was false and had been made by Marshall by appellant's solicitation and inducement, or under his influence, there would have been a crime committed in which both appellant and Marshall would have been actors. This prosecution is for an attempt to commit a crime in which it was contemplated that they should both be actors, and in the proceedings developed by the evidence there was testimony that they both were actors. An accomplice as used in article 801, C.C.P., as stated in the notes under that article, includes principals and accessories, and persons who are particeps criminis. It means a person who either as principal, accomplice or accessory is connected with the crime by unlawful act or omission on his part transpiring either before, at the time of, or after the commission of the offense. Under this proposition a great number of decisions of this court are cited. In the judgment of the writer Marshall was an accomplice under his own testimony under the authority of the opinion by Presiding Judge Hurt in the case of Deaver v. State, 37 Tex. Crim. 396.
On the trial of the case of Cunningham v. Railway, the witness Marshall testified on direct examination, and was also cross-examined. *Page 341 In the indictment his testimony given on direct examination only is set out. Appellant on the trial of this case insisted upon introducing in evidence Marshall's cross-examination given in the civil case. This was excluded on objection by the State, and in the opinion of the writer should on another trial be admitted in evidence. The burden assumed by the State in the indictment was to prove that Marshall's testimony on the trial of the case against the railroad was true. If this burden was discharged by proof that the part of his testimony so set out in the indictment was true, the defendant was entitled to have the jury hear all the testimony Marshall gave upon that trial.
The indictment charged that the inducement offered by appellant to Earl Marshall to make the false affidavit was the payment of $250 in money. The court in submitting the case to the jury in his main charge failed to refer to this allegation, but used the following language with reference to the inducement: "Now, if you believe from the evidence beyond a reasonable doubt that the defendant, S.E. Shipp, did in the county and State aforesaid on or about the time alleged in the indictment by any means whatever corruptly attempt to induce the said Earl Marshall to commit the offense of false swearing." This was error and was called to the attention of the court in appellant's exceptions to his charge. The appellant requested a special charge, however, which correctly stated the indictment alleged in the indictment, and this special charge was given. On another trial the error pointed out should be avoided.
Without concurring in all that is said in the opinion by the Presiding Judge reversing this cause, being of the opinion that there was prejudicial error in refusing to charge on accomplice testimony, the writer concurs in the reversal of the case.
ON REHEARING. May 23, 1917.