The conviction is for murder; penalty assessed at confinement in the penitentiary for a period of eight years.
This is the second appeal of this case. The opinion on the former hearing will be found in 112 Tex.Crim. Rep.,16 S.W.2d 127.
The controverted legal question involves the proper treatment of the testimony of the witness Esther Turner. M. B. Turner was killed at his home. Those present were Mollie Turner, the appellant, and Esther Turner, the witness. Mollie Turner had two sons, John and Claude, who were working in the field at the time of the homicide. Immediately after the killing, Mollie and Esther Turner went to John and Claude Turner and reported the tragedy to them. Mollie Turner was weeping and Esther Turner related the circumstances which showed the killing to have been accidental, that is, that it occurred in a struggle for the possession of a pistol which the deceased was atempting to use against the appellant, Mollie Turner. John Turner was the husband of Esther Turner. From the field, all those mentioned went to the Turner home where in the barn-yard lay the body of the deceased, M. B. Turner. Cobb, the Justice of the Peace, and Sanford, the Sheriff, were there, and in their presence Esther Turner related the incidents of the tragdy in harmony with the previous statements made to John and Claude Turner. On the succeeding day Mollie and Esther Turner were arrested and placed in jail. On the day of their arrest, Esther Turner described the homicide to the witness Maddox as she had previously described it to her kindred and to the sheriff and others. This was vouched for by the testimony of the witness Maddox. Two days after the arrest, the sheriff, at the request of Joe Pennington, father of Esther Turner, conducted her from the jail to the office of Mr. Lockhart, an attorney, whom Pennington had consulted with the view of retention in the prosecution of Mollie Turner. At the office of the attorney Esther Turner related the incidents of the tragedy as she had related them on the occasions mentioned above. Her father, who was present, claimed to Lockhart that she was in fear of the appellant. This Esther Turner persistently denied in the presence of Lockhart and in the presence of her father. Efforts were made to induce her to change her statement but she declined to do so. According to Lockhart, there were several subsequent conversations with Esther Turner with the same result as above. At one of these interviews there was no one present except Esther Turner and himself, and at none of these conversations was the appellant or John Turner present. Upon the present trial, Esther Turner admitted that she had made the statements imputed to her by the various witnesses named above. Pennington, the father of Esther Turner, did not testify. *Page 436
Appellant testified and related the circumstances of the killing in accord with the first statement made by Esther Turner at or near the time of the tragedy. On the present trial Esther Turner's description of the tragedy was in full accord with the State's theory that Mollie Turner murdered the deceased. Esther Turner declared that the reason she falsified in her relation of the incidents of the tragedy was she feared Mollie Turner, by whom the witness had been threatened. She testified that she first related the true facts to her husband, John Turner, on the following evening and was told by him to keep quiet; that she had to help his mother, and if she did not do so, he would kill her; that she heard her husband tell the appellant that she (Esther Turner) would not disclose the true facts. This was denied by John Turner and the appellant.
After the tragedy, Esther Turner lived with her husband at the home of his mother, the appellant, for about five years. She then went to her father's home where she remained silent touching the matter for about eighteen months. At that time she claims to have disclosed the truth, first to her aunt and next to her father. She had sued her husband, John Turner, for divorce and he had entered a contest. Before the first trial of this case, the contest had been withdrawn and the divorce granted.
On the former trial the court declined to instruct the jury on the subject of accomplice testimony and tell them to determine whether Esther Turner was an accomplice witness. For such failure the judgment was reversed. In the opinion of the court the following language is found: "In this case Mrs. Esther Turner said, as we understand the record, that she was influenced by threats made by appellant, possibly repeated by witness' husband, — when she made the statement corroborative of appellant's story to the effect that the shooting was accidental, at the time she talked to the Turner boys in the field and the sheriff, and the justice of the peace. As we understand it, appellant was present at each of these times and places, and it would seem that the issue of duress * * * was in the case." (Turner v. State, 112 Tex.Crim. Rep., 16 S.W.2d 127, 129.
It is to be noticed that on the previous trial the record failed to show that the appellant was not present at the time the statement of Esther Turner was made to various parties recounting the incidents of the tragedy. On the trial, however, from which this appeal is prosecuted, it is made to affirmatively appear that she reiterated the statements a number of times in the absence of the appellant. From the testimony as now developed it appears that the statement was made to officers on the day of the tragedy, before the body of the deceased was removed, under circumstances apparently negativing duress and before the alleged threats to the witness were made. *Page 437
The State now relies upon the testimony of Esther Turner in which she declares that she was present at the time M. B. Turner was killed and that Mollie Turner murdered him. If that be true and such is the basis of the conviction, then the statements of Esther Turner, to which reference has been made above, characterizes her as an accomplice witness. In her statements repeatedly made she declared that the death of M. B. Turner resulted from an accidental discharge of a weapon in his possession. One who knows that a crime has been committed and purposely gives aid in order that the offender may evade arrest or trial or the execution of his sentence is an accessory under Article 77, P. C. When one who is in the attitude of an accessory becomes a witness, his testimony is tested by the rule applicable to an accomplice witness. Article 718, C. C. P. See Howard v. State, 92 Tex.Crim. Rep., especially pp. 231-232, 242 S.W. 739, 743; Blakely v. State, 24 Texas App., 616, 7 S.W. 233, 5 Am. St. Rep., 912; Little v. State,111 Tex. Crim. 500, 14 S.W.2d 853.
As the record at present appears, the admissions of Esther Turner upon the trial classify her as an accomplice witness. That she made the admissions was proved by those to whom she made them and admitted by her. There is no contention that they were not made. In the present instance the elements of duress passes out of the case. Duress ceases to operate when its object is freed from its influence. Esther Turner could not have been in duress while she made the statements to Lockhart under the protection of her father and the sheriff, in the absence of the appellant and in the presence of her friends. She continued to suppress the truth, as she now declares it, while in the home of her father, separated from her husband, and disconnected from the family of the appellant for many months, and did not reveal it until in a divorce action her husband opposed her will. To amount to duress the threat or act must portend immediate injury in the event the party threatened refused to aid in the criminal act. Wharton on Homicide, p. 68. If, after the danger is passed, the person threatened continues to aid in preventing prosecution, he cannot be excused on the ground of duress. See Carlisle v. State, 37 Tex. Crim. 108,38 S.W. 991; Arp v. State, 97 Ala. 5, 12 So. 301, 19 L. R. A., 357, 38 Am. St. Rep., 137; Baxter vs. People, 3 Gilman (8 Illinois) 368; Leach v. State, 99 Tehn., 584, 42 S.W. 195; Rizzole v. Com., 126 Pa., 54, 17 A. 520; Paris v. State,35 Tex. Crim. 82, 31 S.W. 855. See also Servina v. State, 109 Tex.Crim. Rep., 5 S.W.2d 510.
The charge of the court should have, in appropriate language, made it clear to the jury that Esther Turner was an accomplice witness, and that no conviction could be founded upon her testimony unless her statements were corroborated by other evidence as required by Article 718, *Page 438 C. C. P. Such an instruction was requested and exception reserved because of its ommission.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON STATE'S MOTION FOR REHEARING.