This is a conviction of murder of the first degree, with the death penalty. We have carefully examined all the grounds relied upon for a reversal of the judgment, and are of the opinion that none are well taken except that contained in the third assignment, to wit: “The .court erred in failing and refusing to charge the law applicable to the corroboration of an accomplice, the witness Armstead Cove being an accomplice.” The court’s attention was called to this subject, and counsel requested a charge thereon, but did not prepare the charge. The court refused to prepare and submit to the jury instructions relating to this subject, and counsel for appellant excepted and reserved a bill.
Ho doubt the learned trial judge did not believe there was any evidence in the case raising this question, and hence the failure to charge thereon. It will not be questioned that if there be such evidence it was the duty of the court to instruct the jury with reference to the necessity and the character of corroboration required to authorize a conviction upon the testimony of an accomplice.
Was there evidence reasonably tending to show that Cove or Davenport, or any other witness upon whose testimony the State relied for conviction, was an accomplice? If so, under the facts of this case, the court should have instructed with reference thereto. What are the facts?
On Wednesday, March 28, 1888, in Marion county, Texas, in what is known as the Bend neighborhood, the deceased, Ike Bailey, left his house two miles from the “lake” field, where he was afterwards, on Friday, the thirtieth of March, found dead. He had evidently been killed, as in his head and body were two gun shot wounds, apparently of a rifle or pistol of thirty-two calibre. His skull was also fractured by blows from some heavy instrument. The body was found in the “lake” field about three hundred yards from the house of defendant Hines, on a path or road leading from Hines’s house to the Gray field which Hines cultivated, and about twenty steps from an old well. Hear the body of deceased were his saddle and saddle blanket. Wednesday evening, the same evening deceased left home, his mule, with bridle but no saddle or blanket on, was seen going from the “lake” field. A ramrod and a piece of the stock of a shot gun were found near the body. This ramrod was identified as the ramrod of Armstead Cove’s shot gun, also the piece of gun stock. The tracks of Henry Davenport *124were found going towards and from the body. Davenport was seen going in the direction of the “lake” field a short time before the killing, with a gun, and was seen going from the field late Wednesday evening. Late Wednesday evening, when Ike Bailey did. not come home, Davenport told witness that Ike Bailey would not come home, that he had been killed, and his head shot and beat all to pieces. Thursday he told another witness the same in substance, and said he had been killed in the “lake” field. Wednesday Davenport ate dinner at witness Frank Reynolds’s house—had his gun. He said to Reynolds: “If me an'd another negro gets into a rucus, you white men ought to have nothing to do with it.” In the evening he went off with his gun in the direction of the “lake” field. Just after the shots were heard in the field, Davenport was seen going from the direction of the place where the shots were heard and the body afterwards found. He also told witness on Thursday, after the killing, that the first shot did not kill Ike Bailey. Davenport and his wife knew that Ike Bailey went to the “lake” field that evening, and were the only persons who knew of this so far as the evidence shows.
Witness Armstead Cove was the half brother of appellant, lived with him, and owned an old shot gun in very bad repair. The ramrod and piece of stock found by the body belonged to this gun. The night of the evening the body was found Armstead Cove, Henry Davenport, Jim Williams and appellant, were arrested and taken to the inquest separately. The constable was there, and also a crowd of armed men in an excited condition, threatening to kill all the prisoners. The prisoners were taken out and threatened with death if they did not confess. When it was brought to the knowledge of Armstead Cove that the ramrod was identified as being his, and himself being threatened with death, he said the appellant, Hines, told him at the horse lot that he had killed Ike Bailey with his (Armstead Cove’s) gun, and pointed to some brush heaps and said the gun was under one of them. One hour and thirty minutes before daylight he, with the constable and others, he guiding them, went straight to the brush heap, and to the side of the heap where the gun was, stopping at no other, though he insisted that he had examined several others before finding the gun.
Ike Bailey (the deceased) and Bob Hines had had some trouble about some cotton, in Avhich it was charged that Hines stole *125the cotton from Bailey. Hines was under bond to appear to answer the charge. Davenport was the principal witness against Bob Hines in the cotton case. Two or three witnesses testified that Hines had threatened to kill Bailey.
The State attempted to explain some of the facts which tend-to show that Cove and Davenport were accomplices, but this being a question for the jury, the court could not assume that the explanations were full and complete and withdraw the question accomplice vél non from the jury or refuse to call their attention to this question by proper instructions.
Again, there is no attempt to explain some of the most cogent facts which tend to show these witnesses to be accomplices. We mean by explain, to render these facts completely consistent with the hypothesis that neither Cove nor Davenport was an accomplice. Let us present a case so as to illustrate our views upon this subject.
There is evidence in a case tending to show that a witness upon whose testimony the State relies alone or in part for conviction was an accomplice, but the other facts in the case render it reasonably certain that the witness was not an accomplice. Can the trial judge assume these facts, to wit: the .facts which render it reasonably certain that the witness was not an accomplice, to be true, and refuse to submit to the jury the law relating to the testimony of an accomplice? We seriously doubt if in any case the judge can so assume, and refuse to instruct upon the question of an accomplice. But to warrant the court, in thus acting, the case must be one in which the testimony which tends to show the witness to be an accomplice is very slight, and the other facts must render it absolutely certain that he (the witness) is not an accomplice. The rule that the court should charge upon the theory of the case relied upon by the accused, should be applied to this question.
But, there being evidence strongly tending to show that Cove and Davenport were accomplices, do the other facts in the case render it even reasonably certain that they, nor either of them was not an accomplice? They do not; and hence the necessity for the proper instructions relating to the testimony of an accomplice.
We will relate briefly the facts bearing on Cove, which tend to show him an accomplice. Deceased was killed with his gun. He had access to the gun, it being in his house. He denied all *126knowledge of the crime. He went at night with the officer and others to the brush pile—guiding them. He went to the pile, there bfeing a number pf brush piles in the clearing, in which the gun was concealed. He went direct to the pile containing the gun, and he went directly to the side of the pile where the gun was concealed. Upon the trial he swears that he went to several piles before he found the right one. This was shown to be false. How, Hines may have told him where the gun was concealed, and may have given him such a description of the brush pile, its locality, etc., as to enable him to go at night directly to it; this, however, would be remarkable. But to give him such a description and such directions as to enable him to go at night directly to the right pile, and to the side of the pile of brush at which the gun was concealed, is not reasonable. Especially so, when considered in the light - of his statement bearing upon this matter. He says that Hines told him that he had killed Ike Bailey with his (Cove’s) gun, and pointed to some brush heaps and said it was under one of them. There is no pretense that the appellant pointed out the particular pile, or gave the witness such description of it as would enable him to go directly to it. This is contradicted by the witness himself, in this, that he “did turn, down two or three brush heaps in hunting for the gun.”
Opinion delivered January 26, 1889.How, under these facts it is reasonable to infer that this witness did not obtain knowledge of the whereabouts of the gun from the defendant. But, be this as it may, these facts, tending strongly to inculpate the witness either as a principal or an accessory, the question of accomplice vet non should have been submitted to the jury, with instructions that if they found him to be an accomplice then, to convict on his evidence, he should be corroborated as the law directs. As to whether Davenport was an accomplice or not, that also should have been submitted to the jury with proper instructions.
The judgment is reversed and the cause remanded.
Reversed and remanded,