Appellant was convicted of being an accomplice to a murder, and his punishment assessed at confinement in the penitentiary for life.
The contention here is that the conviction should have been under the first count of the indictment, charging him as a principal; the evidence not supporting the verdict finding him guilty as such accomplice, under the other counts. If the testimony of the accomplice is alone to be believed, the contention has considerable force. If much of the remainder of the testimony, taken in connection with that of the accomplice, is to be credited, the jury were justified in finding the verdict they did. While it is true that Kent, the accomplice witness, makes the appellant the principal actor in the homicide, much of the testimony for the State, and substantially all of that for the defendant, shows that he was not present at the time and place of the killing, but was in the town of Cuero, some three or four miles distant from the scene of the murder. The jury were warranted in finding that the homicide was committed about 10 o'clock at night. Kent, the accomplice, swears that he and appellant took deceased, a lunatic negro girl, from the county jail, and conveyed her in a buggy to the bank of the river, and there defendant, by shooting, and by beating her on the head with a pistol, and by drowning, murdered her. The motive on the part of appellant for the homicide, as shown by all the testimony, and his own confessions as well, was to avoid the consequences of his carnal intercourse with said negro girl, who had become pregnant. McAllister, appellant's brother-in-law, who slept in the room in the jail with appellant, testified that at 10 o'clock defendant was in said room, and remained there the balance of the night. There is other testimony showing that he was in the jail room and about the jail about that hour. In addition to this, the evidence of other witnesses show that he was about the streets of Cuero from 8 to 9 o'clock, and that he was at the residence of his mother at a time so near 10 o'clock that it could not have been possible for him to have been at the point of the homicide at the time the accomplice testified it occurred. In other words, both the evidence for the State and the defendant tends very strongly to prove his absence from the point of, and at the time of, the killing. Under this state of case, we believe the jury were fully justified in finding this verdict. There is no question, under this testimony, that appellant advised and prepared the way for the murder of the girl by Kent; furnishing the means, etc. The testimony is rather weak tending to show his presence at the *Page 173 homicide, but is cogent showing his absence. Under this state of case the jury were fully warranted in finding the verdict they did. There are no bills of exception in the record, and the only error assigned is the one discussed. The judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]