Appellant was convicted of the crime of bribery, and his punishment assessed at confinement in the penitentiary for two years, and from said judgment prosecutes this appeal. The charge is that the bribery was for the purpose of disobeying a subpoena.
The first error assigned is the failure of the court to apply the law in regard to accomplice testimony to the evidence of Minnie Montgomery, a witness for the State. This matter was also made the first ground of the motion for new trial. The statement of facts discloses that appellant stood charged in the County Court with a violation of the Sunday law. The record in that cause showed that a subpoena had been served upon L.D. Montgomery as a witness in behalf of the State. It was also shown that Montgomery had pending against him a case of aggravated assault in the same court. On the morning of the 19th of November, 1897, Montgomery's ease was called, and the prosecution dismissed. Appellant requested Montgomery to leave, and he did leave the courthouse, and went about the town of Waco. Appellant's case was called on the same morning, and the trial commenced. During the progress of the trial it was discovered that Montgomery was not present. Appellant then consented to a withdrawal of the case from the jury, and its continuance to the next term of court. A fine of $50 was entered against the witness Montgomery. At the subsequent term the case was again continued on account of Montgomery's absence; and at the March term, 1898, of said court, the case was dismissed on account of his continued absence. After appellant's case was withdrawn from the jury and continued, the witness Minnie Montgomery (sister of L.D. Montgomery) was passing along the street in Waco, near appellant's place of business, when appellant hailed and had a conversation with her in regard to her brother, L.D. Montgomery. During said conversation appellant made an appointment with said Minnie at his place of business at 4 o'clock that evening for the purpose of giving her money to bear the expense of her brother, L.D. Montgomery, in leaving McLennan County. The appointment was kept by the parties, and appellant, through John Long, gave her four dollars and thirty or thirty-five cents for her brother; that she returned home, and that night gave the money to her brother, and stated to him the request of appellant that he should *Page 63 leave on the first train. The witness L.D. Montgomery left, and was gone until subsequent to the dismissal of appellant's case in the County Court. It is placed beyond cavil that the conversations between Minnie Montgomery and defendant with regard to her brother, and the money conveyed by her to the brother, were for the purpose of his leaving McLennan County to avoid appearing against appellant as a witness. This she thoroughly understood, and to prove these facts she was used by the State as a witness. The court failed to charge the jury the law in regard to accomplice testimony as applied to her evidence. There can be no question that under the state of case shown by the record she was an accomplice. When used as a witness, and under an indictment charging her as a principal in this transaction, this testimony, if true, would have sustained a conviction against her. In this connection it may also be stated that the whole record makes the fact evident that appellant in person did not at any time or place offer the witness L.D. Montgomery any consideration as an inducement for him to leave McLennan County, or fail to appear as a witness against him. It is true that defendant requested him to leave at the courthouse, but Montgomery says that at that time he did not say anything about money or any other consideration for his leaving. So, the only way by which the witness was bribed, if bribed, was through his sister Minnie Montgomery, and subsequent to his leaving the courthouse. This is the State's case. Appellant was not even present at the time of the conversation between Minnie and her brother, or when the money was paid by her to her brother. There was no meeting between appellant and L.D. Montgomery from the time he disappeared from the courthouse in the morning of November 1, 1897, until subsequent to March, 1898. Because the court failed to charge the law in regard to accomplice testimony as applied to the evidence of Minnie Montgomery, this judgment must be reversed.
There is also another reversible error apparent from the record. The indictment charges that the bribe was given in order to secure a disobedience of the subpoena served upon L.D. Montgomery. The witness L.D. Montgomery testified that he had never been subpoenaed to appear before the County Court in said case; and the State offered no proof upon this question, save the introduction of the subpoena itself. Without going into the probative force of this subpoena and the return thereon, suffice it to say that after its introduction the court withdrew it from the consideration of the jury, save that with other records in the case, to show that such a case was pending; and instructed them that they could consider it for no other purpose. Then we have the case without any proof as to the fact that the party was summoned as a witness, and a direct contradiction of that fact by the witness himself. It seems that this left the case without any proof of the fact that a subpoena had ever been served upon the witness, and therefore there was nothing for him to disobey. The officer who made the alleged return upon the subpoena was not introduced as a witness; and in fact, as the case stands, there was no evidence introduced to show that the subpoena *Page 64 had ever been served upon the witness. It may be questioned, even if the subpoena with the return thereon had remained before the jury, whether this would have been evidence of the fact that the witness had been summoned.
We would suggest, in view of another trial, that it may be advisable to put two counts in the indictment, one charging appellant as a principal, and the other as an accomplice. Inasmuch as the judgment must be reversed upon the other two grounds, we deem it unnecessary to enter into a discussion of this phase of the case. The judgment is reversed, and the cause remanded.
Reversed and remanded.