48 S.W. 186
NICKS 
v. 
STATE.
Court of Criminal Appeals of Texas.
December 7, 1898.
        Appeal from district court, Walker county; J. M. Smither, Judge.
        Charley Nicks was convicted of theft, and he appeals. Affirmed.
        Powell, Ball & Randolph, for appellant. Mann Trice, for the State.
        DAVIDSON, J.
        Appellant was convicted of horse theft, and his punishment assessed at confinement in the 
penitentiary for a term of five years; hence this appeal.
        When the case was called for trial, appellant suggested to the court, in a written plea, that he had 
made an agreement with the prosecuting officers to testify in behalf of the state against T. Van Goodrum, 
George Townsend, and Joe Robinson, who were charged with the theft of the same animal set out in the 
indictment herein; that, in pursuance of said agreement, he had testified in the case on habeas corpus 
trial, and before the grand jury, at the term of the court at which the bills against the other defendants 
were found.
Page 187
To this the state replied that there was an agreement entered into by the state, represented by the district 
attorney and John C. Williams, who assisted in the prosecution, to the effect that if appellant would testify 
on each and every trial against said Van Goodrum, Townsend, and Robinson in the indictments growing 
out of this transaction, and produce sufficient true testimony to corroborate his statement and confession, 
then, in that event, the state would not prosecute him for the theft of this horse. When the cases were 
called for trial in the district court, appellant violated this agreement, and refused to testify, and because 
of his refusal to so testify the cases against said parties had to be dismissed for want of sufficient evidence 
to convict. Testimony in regard to this matter was introduced. The agreement was as follows: "Huntsville, 
Texas, Aug. 13, 1897. I hereby certify that I have authority to and will enter into an agreement with 
Charles Nicks, before he goes on the witness stand in the district court in this county to testify in the case 
of State of Texas vs. Van Goodrum et al., for the theft of Mrs. Lockett's mare, and will give him all the 
protection the law guaranties to witnesses who turn state's evidence, on condition that the statements 
which he has made concerning same to Sheriff Hunter and myself prove to be true, and are corroborated 
by the evidence of the other witnesses for the state. [Signed] Jno. C. Williams."
        Charley Nicks, being sworn, stated that Mr. Williams, representing the state, made an agreement 
with him that, if he would testify against Van Goodrum, George Townsend, and Joe Robinson, he would 
not be prosecuted for the theft of the Lockett mare. He read to him a part of a letter from Mr. Scott, the 
district attorney, authorizing him to represent the state in the matter. He then gave him the writing above 
set out, and said that he would make such an agreement. He also stated: "I testified on the habeas corpus 
trial of Van Goodrum and others, and also before the grand jury, according to my agreement, and upon 
said testimony true bills were found against said parties. I was not offered as a witness at this term of the 
court. Every time I have been offered as a witness I have testified. I told Mr. Williams and Mr. Scott, the 
district attorney, that I would not testify in the cases against Van Goodrum and others. They did not swear 
me. I told them this the other day in the jury room of the court house. I told them this when they took 
me, with other state witnesses in the Van Goodrum cases, out to consult as to what our evidence would 
be in said case. The cases against Van Goodrum and others had been called, and the court was waiting for 
the state to answer." This is the condition of the record with reference to the agreement in regard to this 
matter. It has been held that, where a party turns state's evidence under an agreement, and carries out 
his contract in good faith, he is entitled to a dismissal of the case as to himself; in other words, that such 
an agreement, properly entered into and faithfully executed by the party turning state's evidence, entitles 
him to a dismissal of his case. Camron v. State, 32 Tex. Cr. R. 180, 22 S. W. 682, it was said: "But it 
would seem that the power of dealing with such agreements lies primarily with the prosecuting officer, 
and in Texas he may act with the consent of the court, and we see no good reason why, when a defendant 
has in good faith carried out his agreement, the labor and expense to the state of a solemn trial should be 
incurred for the purpose of remitting the defendant to his remedy of pardon, to which, it is admitted, he is 
entitled as a matter of right. If the state can make a contract with the defendant for immunity from 
prosecution for his offense, it is due to her own dignity that the contract be carried out in perfect faith." It 
is the recognized practice in Texas that the district attorney or the prosecuting officer may permit one or 
more parties accused of crime to turn state's evidence, and use him or them as witnesses against his co-
defendants; and the statute authorizes such officers to dismiss any prosecutions, with the consent of the 
trial court. It is also a practice, recognized in our courts, for the district attorney, with the concurrence of 
the court, to enter dismissals in this character of case, when it is deemed essential to the ends of justice 
that the parties whose cases are dismissed should turn state's evidence against their confederates. 
Camron v. State, 32 Tex. Cr. R. 180, 22 S. W. 682, and authorities there cited. So where the district 
attorney enters into such an agreement, and the party turning state's evidence carries out in good faith 
his part of the contract, it would seem to terminate his prosecution. But, in order to entitle the defendant 
to such dismissal, he must in good faith carry out his agreement. Neeley's Case, 27 Tex. App. 324, 11 S. 
W. 376, the contract was violated by the party who agreed to testify, and he was placed upon trial and 
convicted, over his protest. The court in that case said: "Having violated his agreement to testify in behalf 
of the state, the defendant was not entitled to exemption from prosecution by virtue of said agreement. It 
is well settled that where a particeps criminis, for the purpose of securing exemption from prosecution, 
agrees to testify in behalf of the state against his accomplice in crime, and violates such agreement by 
refusing to testify, in good faith, fairly and fully to facts within his knowledge, he cannot claim the benefit 
of such agreement, and may be prosecuted and convicted, regardless thereof. I Bish. Cr. Proc. § 1174; 1 
Greenl. Ev. § 379; Rosc. Cr. Ev. §§ 132, 133; Whart. Cr. Ev. §§ 443, 656; Holmes v. State, 20 Tex. App. 
517." So, it would seem that a defendant can claim the benefit of an exemption if he in good faith carries 
out his agreement, and testifies fully and fairly to the facts within his knowledge concerning the 
transaction; but if he does
Page 188
not, and violates his agreement, he cannot claim such exemption from prosecution. Now, under this case, 
the defendant testified on habeas corpus trial and before the grand jury that presented the bills, but when 
the cases were called for trial in the district court he positively refused to carry out his agreement and 
refused to testify against his confederates. He has not placed himself in position to claim exemption from 
prosecution. There was no error committed by the court in regard to this matter.
        There is also in the record what appellant terms his "Second Bill of Exceptions," reserved to the 
action of the court permitting John C. Williams, attorney for the state, to reproduce before the jury the 
confession of appellant made while a convict in the state penitentiary. This purported bill states that 
appellant had been duly and legally warned before making the confession. The grounds of objection are: 
"First, that appellant was a convict in prison; second, that it was made for the purpose of getting a 
pardon; and, third, that the confessions were used to indict other parties, and he was promised immunity 
from punishment." As presented, this bill cannot be considered, because it was not approved by the 
judge; at least, the record fails to show the signature and approval of the judge to said bill of exceptions. 
But if it had been approved, as presented, it would not have afforded ground for reversal. It is not an 
objection to a confession that the party making the confession was a state convict, confined in the 
penitentiary, at the time of making the confession, if he had been properly warned prior to making said 
confession. This confession was only used against this defendant. It was not sought to be used against 
other parties. Appellant seems to contend that, because he was not then a competent witness against 
others, therefore his confession could not be used against himself. This is not a correct position. It has 
been expressly decided in this state, and by this court, that a convict, or an unpardoned ex-convict, can 
testify in his own behalf. Williams v. State, 28 Tex. App. 301, 12 S. W. 1103. He was a competent witness 
in his own behalf.
        The second ground, to wit, that defendant made the confession in the hope of securing a pardon, is 
stated as a ground of objection, and not recited as a fact. If we recur to the statement of facts, it shows 
that said confession was not made for that purpose, and that no pardon was promised him by Williams to 
induce him to make the confession. Nor would it be a ground of objection to the admission of this 
confession that the grand jury had considered said confession in securing indictments against other 
parties. Even if that was a fact, the statement of facts discloses that subsequent to the confession, and 
after the state had determined to use appellant as a witness in the cases against Van Goodrum and 
others, they sought and obtained his pardon; but Williams' testimony excludes the idea emphatically that 
this ever entered into any of the confessions, and there were four or five of them. The testimony further 
shows that, by means of this confession, the matters stated therein were traced up, and the corroborating 
circumstances obtained and ascertained to be true. We understand that even if he had not been warned, 
and by means of said confession the facts were found to be true, it would still be admissible. But he was 
duly and legally warned, without any compulsion, persuasion, or hope or inducement held out to him to 
make said confession. We have made these remarks thinking perhaps that the clerk, in copying the 
purported bill of exceptions, omitted the signature and approval of said bill by the judge below.
        One of the grounds of the motion for a new trial is based upon an alleged erroneous charge of the 
court, to wit: "In this case, as to the theft of said horse, outside of statements testified to as having been 
made by defendant, and admitted in evidence before you, and to be considered by you, and given such 
weight as, upon the consideration of the entire evidence, you may deem the same entitled to, the state 
relies upon circumstantial evidence," etc.; and then follows a charge upon circumstantial evidence. The 
clause quoted is objected to in the motion for new trial as not being the law. When taken in connection 
with the charge on circumstantial evidence, we believe this charge was beneficial, and was intended to be 
beneficial, to the defendant. This authorized the jury, if they saw proper to do so, to disregard the 
confessions, and then consider the sufficiency of the circumstances in the case, independent of said 
confessions. The only objection to this charge is that it was not applicable to the facts of this case. We do 
not think there is any merit in this contention, but that the charge, as before stated, was favorable to the 
defendant.
        It is also contended that the evidence is not sufficient to support the conviction. In our judgment, 
this is the most serious question in the case. It is a well-settled rule that the corpus delicti cannot be 
predicated alone upon the confession of the defendant. It is equally well settled that the confession of the 
defendant, along with other circumstances in the case, can be used to establish the corpus delicti. The 
defendant's confession, in effect, is that, with himself, Van Goodrum, Townsend, and Robinson and Small 
entered into an agreement or conspiracy to steal two horses; one of them being the horse in question, 
and the other belonging to Eastham. On the night of the theft the parties all met, except Small, who lived 
at the place where the theft was committed, and proceeded to the Trinity river, where, in accordance with 
their agreement, defendant and Van Goodrum turned down the river, while the other two parties went 
after the two horses. In further pursuance of said agreement, some time later during the same night, the 
parties again met at the place of
Page 189
separation, when Robinson, Townsend, and Small came up with the two horses. From there they went to 
the residence of Joe Robinson, reaching there about daylight. Here they picked the JT brand on the horse 
set out in the indictment, and defendant secured the other four-fifths interest in the mare from his 
confederates, and sold her to a cousin of his, De Loach. De Loach carried the animal thence to Freestone 
county, and sold her to one Cobb. Cobb traded her to Archer. Archer traded her to a school teacher, and 
the school teacher traded her to a negro. The witness had forgotten the name of the school teacher, and 
the negro to whom the school teacher had traded her. The sheriff of Walker county went to Freestone 
county in pursuance of this information, and ascertained that the mare had been traded as stated. He 
found the school teacher at a Confederate reunion near Fairfield, and the latter informed the sheriff that 
he had traded the mare to a negro, and directed him to where the negro lived, and there found that the 
animal had been traded to a doctor living near Oakwood, and that the doctor had traded her to a negro; 
and that near this negro's house he found and took possession of the animal. This last negro lived 12 
miles northwest from Fairfield in Freestone county. Taking the entire confession as being true, there might 
be a serious question as to whether appellant could be considered as a principal in the transaction, 
inasmuch as he stated he was not actually present at the place of the theft; that is, by his separation at 
the Trinity river from the parties who went on and got the animal, he thereby cut himself off from being a 
principal in the theft. But we take it as a sound rule that the jury are not compelled to believe all the 
confessions made; that they could believe part, and discard the remainder, of the confession. So, looking 
to the defendant's testimony, we find that Joe Robinson and others testified in the case that the animal 
sold to De Loach by appellant was not the Lockett mare, and Robinson testified that he never saw the 
Lockett mare. Robinson, it will be observed, was one of the two men whom the defendant said went from 
the river to where Small lived and returned with the mare. Small, Townsend, and Van Goodrum did not 
testify in the case. De Loach, the cousin of the defendant and the alleged purchaser from defendant of the 
Lockett mare, testified that he did not buy the Lockett mare, the one in question, from the defendant, and 
corroborates other witnesses in regard to the description of the mare that he actually did buy from the 
defendant, which, if true, was a different animal. It is not necessary to go into the details on that phase of 
the case. De Loach further testified that the animal he bought from defendant was, a few days before he 
testified, still in Freestone county, near Fairfield. The facts show incontestably that the sheriff had 
recovered the Lockett mare, 12 miles northwest of Fairfield, and had returned her to her owner, who then 
had possession of her, in Walker county. So the jury may have discarded the statement of defendant that 
he had sold the Lockett mare to De Loach, and the further fact that Robinson, Townsend, and Small stole 
the animal, inasmuch as Robinson had denied ever seeing the Lockett mare, and De Loach testified that 
he had not bought said mare from the defendant. The reasonable and legitimate conclusion from the 
appellant's confession is that he had stolen the mare, and had himself carried her to Freestone county. 
Under this phase of the testimony, we believe the jury would have been justified in arriving at the 
conclusion that appellant was the party who was guilty of actually taking the animal. So, it will be seen 
that we not only have the defendant's confession, but we have facts stated by him as to where the mare 
was, and the different parties who owned the mare after she had been carried to Freestone county, and 
these facts corroborated by witnesses as to their truthfulness. These facts, taken with the further fact that 
the mare disappeared from the ranch where she was kept (she being an unbroken four year old mare), 
and was carried by somebody from Walker county to Freestone, and the further fact that there was still 
evidence on said mare of the picked brand JT, which appellant says he assisted in picking, are a sufficient 
predicate for the jury to base a verdict. Then, if De Loach did not buy the animal from defendant, and 
carry her to Freestone county, we have defendant left in possession of her, under his own statement, in 
Walker county; and we find her later on, in Freestone county, transferred from one owner to another, as 
he details in his confession. So, under the authority of Kugadt v. State (Tex. Cr. App.) 44 S. W. 989, and 
authorities there cited, we believe the corpus delicti is sufficiently established. In cases of this character, 
we believe it to be a sound rule that, where the animal has been shown to have been stolen by somebody, 
the confession of the defendant is sufficient to connect him with the theft. As before stated, it is a settled 
rule that the confession, with other circumstances of the case, can be used to establish the corpus delicti. 
We believe, as the record presents itself, the jury were justified in believing that the animal was stolen, 
and that appellant committed the theft. The judgment is affirmed.