We quote from the opinion of Presiding Judge Morrow in the case of Anderson v. State, 98 Tex. Crim. 449, 266 S.W. 159, as follows: "It is a general rule that, where one is connected with a criminal transaction, and testified to facts exculpating him, his explanation is not binding but, taken in connection with the circumstances attending the transaction, presents a question of fact which ought, on proper request, to be submitted to the jury for solution. See Smith v. State, 89 Tex. Crim. 145; Corpus Juris, vol. 16, p. 678."
Where the state witness, Roberts, had given damaging testimony against appellant, and was shown to have been present with, aiding and encouraging appellant in the commission of the offense, it was error to refuse requested charges presenting the issue of said witness being an accomplice. See Smith v. State, 229 S.W. 523. Appeal from the District Court of Hunt County.
But there is no authority for such an action and we decline the opportunity to contrive it. The district attorney cites Smith v. State, 89 Tex.Crim. 145, 229 S.W. 523 (1921) in which the court reversed a conviction for the trial judge's failure to submit the fact issue of accomplice testimony to the jury; the State contends that "except that the sides of the docket were switched, the opinion in [ Smith] is in point." However, the sides of the docket cannot be "switched," for, as already conceded by the State, it has no right to appeal; the question of Smith's relevance is therefore ab initio moot.
We note, however, that although the Elizando case, supra, quotes Zollicoffer v. State, supra, we do not feel inclined to follow the latter case where the fact of accompliceship is either admitted or is free from doubt, but in such matters we think the controlling doctrine is set forth in the following cases: Smith v. State, 89 Tex.Crim. R., 229 S.W. 523; Harrell v. State, 107 Tex.Crim. R., 294 S.W. 597; Collier v. State, 108 Tex.Crim.
Whether Followell was to be regarded by the jury as an accomplice might have been submitted to them as a question of fact. See Davis v. State, 70 Tex.Crim. Rep.; Smith v. State, 89 Tex. Crim. 145; Sowells v. State, 99 Tex.Crim. Rep.; Pauly v. State, 93 Tex.Crim. Rep.. The question before the court was not the theft of the property but a conspiracy to steal the property of Roy Binyon. We have perceived no testimony which would meet the measure of the law which forbids a conviction upon the uncorroborated testimony of an accomplice, as set out in article 718, C. C. P., 1925.
Appellant introduced no testimony, and under all the facts Voss did not originate the taking or suggest the same, but on the contrary it is beyond dispute that the suggestion came from appellant, and that appellant was present and participated in and directed the taking of the car and its removal and disposition. On the question of accomplice in such case see Wright v. State, 7 Tex.Crim. App. 574; Freeman v. State, 11 Tex.Crim. App. 92; Allison v. State, 14 Tex.Crim. App. 122; Minter v. State, 70 Tex.Crim. Rep.; Smith v. State, 89 Tex. Crim. 145. We do not think the court erred in declining to tell the jury that Voss was an accomplice, or in refusing to submit to them that issue.
Where the complicity of the witness is admitted, but the prosecution claimed that he was merely a feigned accomplice acting with a view to the detection of the real criminal, it is for the jury to determine whether the witness was an actual or only a feigned accomplice. Following Smith v. State, 89 Tex. Crim. 145. Appeal from the District Court of Bowie. Tried below before the Honorable P.A. Turner.
It has been well established for over a century in this state that whenever "there is a question whether a witness is an accomplice, it is proper to submit that issue to the jury, and this is sufficient even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law." Harris v. State, 645 S.W.2d 447, 454 (Tex.Crim.App. 1983); see Blake, 971 S.W.2d at 455; Smith v. State, 229 S.W. 523, 526 (Tex.Crim.App. 1921); Powell v. State, 57 S.W. 95, 96 (Tex.Crim.App. 1900). Only when the evidence clearly and convincingly shows that the witness is an accomplice as a matter of law is the judge bound to instruct the jury of this fact.