Conviction for murder; punishment, death.
It being reported to the sheriff of Mason county that two Mexicans in a car on the Brady highway were supposed to have found and picked up a bag belonging to Mr. Smith, said officer followed the car occupied by appellant and one Chavez through the town of Mason and to a point some three quarters of a mile north, at which point the sheriff stopped said car, — informed its occupants of the reported loss of the bag, and the supposition that they might have it, and requested permission to search the car which, according to the testimony on this trial, was granted him. When the officer opened the back of the car he discovered it to contain a large quantity of whisky, and notified the occupants that he would have to take them back to Mason. He got in the car with them, evidently for the purpose of accompanying them back to said town. After going a short distance the car was turned up a side road, and at a point not far distant from said highway the sheriff was shot and killed. Both *Page 527 appellant and Chavez were indicted for the murder. Upon this trial Chavez was used as a witness for the State.
In his charge to the jury the court submitted to them the issue as to whether Chavez was an accomplice, and gave instructions governing the jury in determining such issue. To this charge appellant excepted on the ground that Chavez was an accomplice as a matter of law, and insisted that the court so tell the jury in the charge. We think the exception well taken, and that the learned trial judge fell into error in not instructing the jury as a matter of law that Chavez was an accomplice. Authorities seem numerous. Among recent cases will be found those of Lowe v. State, 98 Tex.Crim. Rep., and Newton v. State, 94 Tex.Crim. Rep., in each of which other authorities are cited.
Attention is also called to the fact that the indictment in this case omits the allegation that the killing was upon malice aforethought. Under recent decisions of the court where the State desires to ask for a penalty greater than five years, it is necessary that the indictment contain such allegation.
The judgment will be reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.