¶1The offense is the unlawful showing and exhibition of lewd and lascivious motion pictures, as denounced by Article 527, V.A.P.C.; the punishment, a fine of $50.00.
¶2In view of our disposition of this cause, a recitation of the facts will not be deemed necessary other than to observe that the state called the only three witnesses who testified in the case. The first, a police officer, testified that he went to a two-room establishment located at 315 Main Street in the city of Houston (which seems to have been what is commonly known as a “Penny Arcade”), where he put quarters in three different machines and viewed an indecent film, after which he seized certain motion picture film from within machines. He stated that the appellant was not present at the place at the time he made such seizure and did not state any fact which would indicate that the appellant had any connection with the place of business located at 315 Main Street other than that he found therein a box bearing the appellant’s name.
¶3The second and third witnesses were employees of the appellant. One repaired the machines and kept them in working order, and the other was the cashier. They were as guilty of violating the law as was the appellant, and their testimony required corroboration.
¶4We find nothing in the record to corroborate their testimony that the appellant operated the place of business located at 315 *8Main Street or was guilty of the violation of the law herein charged.
¶5In the absence of such corroboration, the judgment of conviction cannot stand. Article 718, V.A.C.C.P.
¶6The judgment is reversed and the cause remanded.
¶7dissenting.
¶8I am unable to agree with the conclusion of my brethren that the witness Manuel Flanagan, who was employed by appellant as cashier at the Arcade, and whose testimony connected appellant with the exhibiting of the lewd films, was an accomplice witness as a matter of law.
¶9Flanagan testified that he had not been present when films were received and so far as the testimony in this record is concerned he is not shown to have been aware of the lewd character of films which were found in the machines.
¶10At most, the question of. whether Flanagan was an accomplice witness was one of fact, which the judge as trier of facts resolved in favor of the judgment he rendered.