Appellant was convicted in the County Court of Gray County of throwing tacks upon a public highway, and his punishment fixed at a fine of $50 and sixty days confinement in the county jail.
A witness named Cousins testified that on the night in question he drove a car in which appellant and a number of other boys were and that the party purposely scattered tacks in a public road in Gray County. The matter of so doing was discussed among them before they left McLean, and witness drove his party to the place where they got the tacks, knowing that they intended to get them, and he was present driving the car when they scattered the tacks in the road. No other witness testified to the presence and participation of appellant in the placing of said tacks in said road, and the only other testimony offered on behalf of the State was that of two gentlemen who stated that they found quantities of tacks in said road.
The Legislature of our State has seen fit to write into the body of our laws a statute that forbids the legal conviction of a citizen upon the testimony of an accomplice unless such testimony be corroborated by other evidence tending to connect the accused with the commission of the crime, and it is expressly stated that such corroborating evidence is not sufficient if it merely shows the commission of the offense. Art. 801, Vernon's C.C.P. Measuring the sufficiency of the testimony in the instant case by the rule laid down in said statute, we are forced to conclude that the evidence is not enough. The testimony of the two witnesses who found tacks in the road went only to show that an offense had been committed. It pointed to no one as the guilty agent. The only other testimony in the record is that of the accomplice. Analysis and argument could make no plainer the necessary application of the statutory rule mentioned.
Appellant asked the court to instruct the jury that State witness Cousins was an accomplice, and in applying the law of accomplice testimony the court refused, but instead submitted to the jury the question as to whether said witness was an accomplice. We are of opinion the court should have instructed the jury affirmatively that said witness was an accomplice. It is well settled that the law of accomplice testimony applies in a misdemeanor case. Merritt v. State, 10 Texas Crim. App. 402; Wiley v. State, *Page 277 33 Tex. Crim. 406; Deary v. State, 62 Tex.Crim. Rep.; Wallace v. State, 63 Tex.Crim. Rep..
For the errors above mentioned, the judgment will be reversed and the cause remanded.
Reversed and remanded.