Batchelor v. State (50 S.W.2d 1099, 1932)

CHRISTIAN, J.

The • offense is robbery; the punishment, confinement in the penitentiary f or five years. _

J. C. Rose and Spencer Adams, both of whom were white men, and Alto McGowan, a negro, testified for the state, in substance, as follows: The three of them came from Dallas into Ellis county on the night of January 28,1931, to make a delivery of five cases of whisky at the underpass between Red Oak and Waxahachie, Tex. The whisky was to be delivered to Stacy Childress, whom the parties believed to bear the name “Bill Green.” They arrived with the whisky some time between 7:30 and 10 o’clock at night, and, being apprehensive, they went on up the road two or three miles, put the whisky out of the car, and came back and. stopped at the • car occupied by Stacy Childress. While talking to Childress, Jim Everett and J. W. Cadle came running up from a Ford roadster they had parked up the road behind Childress’ car, and told them to “stick them up.” Everett had a flashlight and J. W. Cadle, a pistol, Cadle directed the pistol at the witnesses. Childress searched Adams and Rose. He took 50 cents off of Rose and put it back in Rose’s pocket, saying that he was a “cheap s- of a b- of a bootlegger.” He got nothing off of Adams. Childress then searched Alto McGowan and took $95 from' him. The witnesses were then told to get down the road, and they left in their.car, going toward Dallas. A Chevrolet roadster followed them for a long way toward Dallas. After reaching Dallas the witnesses immediately turned around and came to Waxahachie, where they reported the robbery to the officers. ,

Stacy Childress, an accomplice witness, testified for the state, in substance, as follows: Pursuánt to an agreement with J. W.' Cadle, he had arranged to buy the whisky1 from the negro, Alto McGowan. He had; called Cadle from Waxahachie and told him to meet him at the underpass, it being the purpose of the parties to “hold McGowan-up,” and take the whisky away from him. Cadle was to notify the other participants. Appellant, who was a peace officer, was present in a Ford roadster, which was parked up the road. After he (Childress), Cadle, and Jim Everett had held the parties up and taken $95 off of McGowan, he (Childress) went up the road to where appellant was and gave him the money. Appellant sáid: “Let me keep this money. They might catch you and there might be something noised about it.” Appellant said he could split the money later',' Jim Everett and appellant then got in Ever-1ett’s car and followed Rose, Adams, and McGowan along the highway toward Dallas. He (Childress) and Cadle took the whisky and ■brought it to town. He got six and one-half ..gallons of the whisky, which he carried to his father’s house, and Cadle carried t¡he balance away in appellant’s car.

'Testifying in his own behalf, appellant admitted that he was at the underpass, but declared that he had gone there as a peace officer "for the purpose of searching parties whom he expected to bring whisky into Ellis county. He testified that he knew of no robbery being committed on that night, and denied that the accomplice Childress gave ’him any money. He said when the parties ■ appeared they stopped for a moment at Child-ress’ car and then went on down the road. He testified, further, .that, after the parties : started on toward Dallas, he and Jim Ever■ett followed them for a short distance. In "view of the disposition we must make of the 'case, we have not undertaken to state in de-itail appellant’s testimony. Suffice it to say UUmt appellant denied guilty connection with the transaction.

The court instructed the jury as follows: “I instruct you that the witness Stacy Childress is an accomplice. Now you can not convict the defendant upon his testimony alone, unless you first ibelieve that his testimony is true and tends to connect the defendant with the offense charged; and then you can not convict the defendant upon said testimony unless you further believe that there is other testimony in the case corroborative of the testimony of said Stacy Childress tending to connect the defendant with the