Jim Smith v. The State, 28 Tex. Ct. App. 309

Willson, Judge. On the night of May 18,1888, Andrew Shearon was murdered in his bed, his skull having been crushed and broken in several places by blows inflicted with some blunt instrument. Jim Smith, the defendant, stands convicted of said murder, the conviction being for murder in the first degree, with the death penalty assessed. There has been no presentation of the case in behalf of the defendant in this court, nor is there an assignment of errors in the record. In an original and amended motion for a new trial errors are complained of which we will notice. These are: 1.

That the court failed to instruct the jury as to circumstantial evidence. This was not error, as the inculpatory evidence was not wholly circumstantial. There was proof that the defendant confessed to having committed the murder, and a confession is direct and not circumstantial evidence. It is only when the inculpatory evidence is wholly circumstantial that an instruction as to that character of evidence is demanded. Willard v. The State, 26 Texas Ct. App., 126; Heard v. The State, 24 Texas Ct. App., 103; Carr v. The State, Id., 562. 2.

That the court failed to instruct the jury in relation to accomplice testimony. This was not error, because there was no evidence demanding, or which would have warranted such an instruction. Mere knowledge on the part of a witness that the defendant committed the crime does not render such, witness an accomplice so as to require corroboration of his testimony. To require or warrant an instruction on accomplice testimony, there must be some evidence of a witness’s complicity in the crime for which the defendant is being tried. Pitner v. The State, 23 Texas Ct. App., 366; Kerrigan v. The State, 21 Texas Ct.

App., 487; Brown v. The State, 6 Texas Ct. App., 286; Ham v. The State, 4 Texas Ct. App., 645. There was no such evidence in this case. 3. That a new trial should have been granted the defendant upon the-ground of newly discovered evidence. This ground of the motion was controverted by the State, and we think successfully. It was shown that the pretended newly discovered evidence was not worthy of credit, and of a character which would not be likely to change the result on another trial. Rucker v. The State, 7 Texas Ct. App., 549. 4.

That a new trial should have been granted the defendant because the verdict of the jury is contrary to the evidence. We have carefully considered the evidence, and our judgment is that the conviction is in accordance with, and fully supported by it. Defendant confessed that he committed the murder, and his confession is strongly corroborated by other facts proved. Finding no error in the conviction it is affirmed. Affirmed. Judges all present and concurring.