Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 262
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262 BARRARA V. THE STATE. [Term of
Opinion of the Court.
" Those for conspiracy were dismissed. Amado Lerma, before
testifying, said, if all the prosecutions against him on account of
"Penescal affair were dismissed, he would ' serve as a witness,'
"when the District Attorney announced to him, Lerma, that
all the prosecutions against him for anything connected with
"the murders at Penescal should be dismissed; whereupon the
"said Lerma, being sworn, testified."
The substance of his testimony was that the defendant was
one of the men who killed Morton (and three others) at the
Penescal peninsula. That witness was taken prisoner by a
portion of the crowd who were engaged in the murder, at a
point some twenty miles distant from the place where the
crime was committed, and whilst it is not directly stated that
he was still a prisoner when he was present at the killing, we
are left to infer that such was his claim. There is, at all events,
nothing to show that the witness admitted.that he was in any
way implicated in the crime.
The defendant requested the court to give the jury the following
instruction, which was refused.
"The jury are instructed that if they believe the witness,
"Arlado Lerma, was engaged in the commission of the mur"
der of Morton, either as principal or as an accomplice, or that
"he was cparticeps criminis in the murder, then the uncor"
roborated testimony of said Lerma is not sufficient to convict,
"and it is not sufficient that the corroboration shows only the
'4 commission of the offense.
" The testimony of a principal in a crime who turned State's
" evidence, and has been released that he may testify, is not
"sufficient of itself to convict."
This instruction was based on the following section of the
Code of Criminal Procedure:
"A conviction cannot be had upon the testimony of an ac"
complice, unless corroborated by other evidence tending to
" connect the defendant with the offense committed; and the
" corroboration is not sufficient, if it merely shows the commis'
sion of the offense." (Paschal's Digest, Article 3118,)
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/270/: accessed September 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .