Willard v. State

White, Presiding Judge.

This is a second appeal from a judgment of conviction in this case. (See Willard v. The State, 26 Texas Ct. App., 126.) After a most thorough reading of the record in this appeal we are of opinion that there is but one question raised of sufficient moment to require a discussion at our hands.

It is most urgently insisted that there is no evidence of appellant’s guilty agency in the alleged theft of the animal, save his own confession, or admissions amounting to a confession, and that this confession or admission, being uncorroborated, is not sufficient in law to warrant his conviction. In other words, it is contended that the corpus delicti of a crime can not be proven alone by the confessions of a party charged with the crime.

In all criminal prosecutions the rule is elementary that, to sustain a conviction, two things must be established, first, a criminal act, and, second, defendant’s agency in the production of such act. (Whart. Crim. Ev., 8 ed., sec. 325; 3 Greenl. Ev., sec. 30.) In other words, there must be proof of the corpus delicti and the identity of the prisoner. But, whilst this is so, there is no one kind of evidence to be always demanded in proof of the corpus delicti, any more than of any other fact. It can seldom be proven by direct or positive testimony, and may be lawfully established by circumstantial evidence, provided it be satisfactory to the understanding and conscience of the jury beyond a reasonable doubt. (Brown v. The State, 1 Texas Ct. App., 154, and authorities cited; Merrill v. The State, 2 Texas Ct. App., 177.)

With regard to confessions, Mr. Wharton says: “While voluntary confessions of specific charges or of inculpatory facts are always admissible under the conditions above stated, *391 they can not sustain a conviction unless there be corroborative proof of the corpus delicti and he cites a long array of authorities in support of the proposition. (Whart. Crim. Evid., 8 ed., sec. 632.) “It should be'remembered,” he says, “that the corpus delicti consists not merely of an objective crime, but of the defendant’s agency in the crime, and unless the corpus delicti in both these respects is proved, a confession is not by itself enough to sustain a conviction.” (Id., sec. 633.)

Defendant’s counsel requested a special instruction upon this point, which the court refused because, as stated by the learned judge, “not the law as I understand it. A confession in some cases, uncorroborated, might be insufficient to establish the corpus delicti, but I think certainly in this case the jury may consider defendant’s statements in connection with the other proof in determining the matter.” There is no doubt of the correctness of the latter proposition as stated by the court. We have seen from the authorities that he is mistaken as to his first declaration that such an instruction would not be the law. The question is, if it should occur that the court erred in its opinion as to the correctness of the proposition of law, did the refusal of the instruction materially injure the rights of the defendant in this case? Was the instruction a part of the law applicable to the facts, and necessary to be given independently of the law as submitted in the general charge? In this case the court plainly and, as we think, fully instructed the jury upon all the legitimate phases of the testimony, including an elaborate instruction upon circumstantial testimony.

Now let us recur to the evidence' in the case. The alleged stolen animal was a noted cow, and so peculiar was the size and shape of her horns that “she was known as old Broadhorns.” The horns were, in addition to their length and size, very peculiarly turned and shaped. As described by the witness Brashear, “she had noted horns, very large, growing out towards the front, twisted up and flared out at the top.” “Everybody in the whole country and settlement knew the cow by her horns.’’ This cow was fat when last seen on her range near defendant’s house. Defendant and his brother butchered beeves at their pen. The cow was missed from her accustomed- range on the tenth of January. Shortly afterwards Holloway, the alleged owner, started to hunt for her, and went to defendant’s house. As soon as defendant saw him, defendant looked excited and *392 uneasy and went back to the house. Defendant’s brother remained, and Holloway found, in looking around in the field among the weeds behind the stable, several cow heads and cow hides, cut all to pieces, and among these heads he found the head of his cow. He swears positively and emphatically: “These horns I know came from the cow above described, and I identified the same.” Defendant and his brother denied at that time that they knew anything about the killing of the cow. That afternoon, however, Holloway went back to see them, and at this time the defendant admitted that he had killed the cow, and proposed to pay, and finally agreed to pay fifteen dollars for her. We are of opinion that, indepenent of the defendant’s confession, the evidence was strong and cogent that the cow had been killed and at least that he was a guilty agent in the crime. We are not prepared to say that the evidence would not have been sufficient without his confession; there can be no question but that it abundantly corroborates his confession.

This being so, was it necessary that the court, in addition to the general charge as given, should have given defendant’s special requested instruction with regard to the necessity for corroboration of the confession in order to establish the corpus delicti? Under the peculiar facts of this case and the charge as given, we do not think the law of the special instruction was essential, nor can we perceive how any possible injury could have been done defendant by the refusal to give it.

We are of opinion that the evidence, outside the confession, establishes beyond all reasonable doubt that the animal was identified as the property of the prosecutor, and that it had been stolen and killed, and that the evidence sufficiently establishes the guilty agency of the appellant. And whilst the instruction in a proper case was unquestionably correct as a legal proposition, we are of opinion it would have been unjust to the prosecution to have given it in this case, because it would perhaps have misled the jury to the erroneous conclusion that the corpus delicti had not been sufficiently proven independently of the confession, and have created a doubt where, in our opinion, no doubt could or should legally have existed.

Other errors assigned and insisted upon are not deemed by us reversible in their character in so far as the same appear to be supported by the record. Most of them are so fully ex *393 plained by the record that they are made to appear entirely harmless or without merit.

Opinion delivered March 20, 1889.

We have found no error requiring a reversal, and the judgment is affirmed.

Affirmed.