RAMSEY, Judge.
Appellant was indicted in the District Court of Madison County, charged with the theft of one head of cattle— the property of one Ford. On trial he was convicted and his punishment assessed at confinement in the penitentiary for a period of two years.
The evidence shows briefly that about the 15th of August, 1907, a red heifer yearling belonging to Ford was missed by him and later found not far from where appellant resided, in what is known as the old Judy Field, with the hide covering the bones of the yearling from which the flesh had pretty well all been cut. There was no doubt about the identity of the animal. The ear, which seems to have been left, bore Ford’s mark; and near where the skeleton was found was a bell which had been worn by the animal. The conviction rested somewhat largely upon the testimony of Thomas Johnson, who stated in substance that he came to where the yearling was killed after it was killed, and that the meat was cut from the body of the animal, and that after this was done appellant instructed the parties present, who were younger than himself, to take what was left of the animal into a nearby pasture and cover the bones with the hide, and also to take the meat to his house by a round about way. This witness denied any complicity in the actual killing of the yearling or any knowledge of the ownership of same. Later on the same day the party searching the premises of appellant found in his smokehouse a large can pretty well filled with fresh meat
in which there were no bones. No explanation of this was given by appellant. One of his sons stated in his absence, however, to the officer that he had bought the meat from one Johnson. This is a brief summary of the more important evidence, and is not intended in any sense to be more than a mere outline of the inculpatory facts.
1. A number of grounds are urged why this conviction should be set aside. First, it is claimed that the court erred in his charge to the jury in failing to instruct them, as a matter of fact and law, that the witness Thomas Johnson was an accomplice. The court did instruct the jury that if they believed, or found from the evidence that this witness was an accomplice, then that no conviction could be had on his testimony, unless they believed his testimony was true, and there ivas other evidence in the record tending to corroborate his testimony, and that such corroboration was not sufficient if it merely showed that an offense had been committed. It is well settled in this State that where the matter is left in doubt as to the relation of a witness to a crime charged, it is proper and frequently demanded that the court should submit the issue in question to the jury as to whether such witness was or was not an accomplice. And so in this case not only do we believe that the court did not err in so instructing the jury, but that if he had instructed the jury that as a matter of law the witness Johnson was an accomplice, appellant would have had just ground for complaint, and we would on such instruction have been compelled, if the matter were challenged, to have reversed the judgment.
2.
The next, and second ground of the motion for a new trial is thus stated: “Because the court erred in his general charge to the jury on the subject of accomplice’s testimony in this: that it assumed that the testimony of the accomplice showed or tended to show that the defendant was guilty of the offense charged, and only required the jury to believe that said testimony^ was true, and that same had been corroborated by other evidence tending to establish beyond a reasonable doubt that the defendant committed the offense charged. Defendant says, that before the jury would be authorized to convict upon the testimony of an accomplice three things must be found (a), that the accomplice’s testimony is true; (b) that the accomplice’s testimony showed, or tended to show, that defendant was guilty of the offense charged; and (c) that there was other testimony, outside of the accomplice’s testimony, tending to connect defendant with the offense charged; and defendant shows to the court that nowhere in his charge did he tell the jury that before they could convict upon the testimony of an accomplice that his testimony shows or tends to show that defendant was guilty of the offense charged. And the court further erred in said charge in failing to instruct the jury that the corroboration is not sufficient
if it merely shows the commission of the offense.” On this subject the court charged" the jury as follows:
“A
conviction can not be had upon the testimony of an accomplice, 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 commission of the offense. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either about, at the time, or after the commission of .the offense, and whether or not he was present and participated in the commission of the crime. How, if you are satisfied from the evidence that the witness, Thomas Johnson, was an accomplice,- or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are further instructed that you can not find the defendant guilty upon his testimony, unless you are satisfied beyond a reasonable doubt that the testimony of said witness is true, and you are further satisfied by other evidence beyond a reasonable doubt that the testimony of said witness has been corroborated by other evidence tending to establish beyond a reasonable doubt that the defendant did in fact commit the offense charged as charged.”
It will be seen, we think, that the criticisms contained in the second paragraph of appellant’s motion, above quoted are not wholly justified by the record.
We
think that this charge is entirely in accordance with' the decisions of this court in the case of Barton v. State, 49 Texas Crim. Rep., 121, and Burrell Oates v. State, 50 Texas Crim. Rep., 39. These decisions proceed upon the principle that where in any case the court merely charges the jury that in order to sustain ;a conviction, the testimony of the accomplice must be corroborated, 'the jury might thereby infer that it was the opinion of the court that the testimony of the accomplice was true, and that in order to relieve such charge of the criticism that it was upon the weight of the testimony, the jury should be further instructed that before ¡they could convict upon such accomplice’s testimony, they must believe that such testimony was true. Whatever might be thought pf the correctness of these decisions at this late day, they have become a settled rule of this court, and the profession generally, as well as trial judges have come so to regard it. However, testing 'the charge of the court by the strictest rule ever laid down by this tribunal, we think it is substantially beyond just criticism and follows the doctrine laid down in the cases above cited. In addition to the charge on accomplice’s testimony, and after the definition of the offense of theft, the court charged on the law of principals, reasonable doubt and the defense of alibi.
3.
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RAMSEY, Judge.
Appellant was indicted in the District Court of Madison County, charged with the theft of one head of cattle— the property of one Ford. On trial he was convicted and his punishment assessed at confinement in the penitentiary for a period of two years.
The evidence shows briefly that about the 15th of August, 1907, a red heifer yearling belonging to Ford was missed by him and later found not far from where appellant resided, in what is known as the old Judy Field, with the hide covering the bones of the yearling from which the flesh had pretty well all been cut. There was no doubt about the identity of the animal. The ear, which seems to have been left, bore Ford’s mark; and near where the skeleton was found was a bell which had been worn by the animal. The conviction rested somewhat largely upon the testimony of Thomas Johnson, who stated in substance that he came to where the yearling was killed after it was killed, and that the meat was cut from the body of the animal, and that after this was done appellant instructed the parties present, who were younger than himself, to take what was left of the animal into a nearby pasture and cover the bones with the hide, and also to take the meat to his house by a round about way. This witness denied any complicity in the actual killing of the yearling or any knowledge of the ownership of same. Later on the same day the party searching the premises of appellant found in his smokehouse a large can pretty well filled with fresh meat
in which there were no bones. No explanation of this was given by appellant. One of his sons stated in his absence, however, to the officer that he had bought the meat from one Johnson. This is a brief summary of the more important evidence, and is not intended in any sense to be more than a mere outline of the inculpatory facts.
1. A number of grounds are urged why this conviction should be set aside. First, it is claimed that the court erred in his charge to the jury in failing to instruct them, as a matter of fact and law, that the witness Thomas Johnson was an accomplice. The court did instruct the jury that if they believed, or found from the evidence that this witness was an accomplice, then that no conviction could be had on his testimony, unless they believed his testimony was true, and there ivas other evidence in the record tending to corroborate his testimony, and that such corroboration was not sufficient if it merely showed that an offense had been committed. It is well settled in this State that where the matter is left in doubt as to the relation of a witness to a crime charged, it is proper and frequently demanded that the court should submit the issue in question to the jury as to whether such witness was or was not an accomplice. And so in this case not only do we believe that the court did not err in so instructing the jury, but that if he had instructed the jury that as a matter of law the witness Johnson was an accomplice, appellant would have had just ground for complaint, and we would on such instruction have been compelled, if the matter were challenged, to have reversed the judgment.
2.
The next, and second ground of the motion for a new trial is thus stated: “Because the court erred in his general charge to the jury on the subject of accomplice’s testimony in this: that it assumed that the testimony of the accomplice showed or tended to show that the defendant was guilty of the offense charged, and only required the jury to believe that said testimony^ was true, and that same had been corroborated by other evidence tending to establish beyond a reasonable doubt that the defendant committed the offense charged. Defendant says, that before the jury would be authorized to convict upon the testimony of an accomplice three things must be found (a), that the accomplice’s testimony is true; (b) that the accomplice’s testimony showed, or tended to show, that defendant was guilty of the offense charged; and (c) that there was other testimony, outside of the accomplice’s testimony, tending to connect defendant with the offense charged; and defendant shows to the court that nowhere in his charge did he tell the jury that before they could convict upon the testimony of an accomplice that his testimony shows or tends to show that defendant was guilty of the offense charged. And the court further erred in said charge in failing to instruct the jury that the corroboration is not sufficient
if it merely shows the commission of the offense.” On this subject the court charged" the jury as follows:
“A
conviction can not be had upon the testimony of an accomplice, 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 commission of the offense. An accomplice, as the word is here used, means any one connected with the crime committed, either as principal offender, as an accomplice, as an accessory, or otherwise. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either about, at the time, or after the commission of .the offense, and whether or not he was present and participated in the commission of the crime. How, if you are satisfied from the evidence that the witness, Thomas Johnson, was an accomplice,- or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are further instructed that you can not find the defendant guilty upon his testimony, unless you are satisfied beyond a reasonable doubt that the testimony of said witness is true, and you are further satisfied by other evidence beyond a reasonable doubt that the testimony of said witness has been corroborated by other evidence tending to establish beyond a reasonable doubt that the defendant did in fact commit the offense charged as charged.”
It will be seen, we think, that the criticisms contained in the second paragraph of appellant’s motion, above quoted are not wholly justified by the record.
We
think that this charge is entirely in accordance with' the decisions of this court in the case of Barton v. State, 49 Texas Crim. Rep., 121, and Burrell Oates v. State, 50 Texas Crim. Rep., 39. These decisions proceed upon the principle that where in any case the court merely charges the jury that in order to sustain ;a conviction, the testimony of the accomplice must be corroborated, 'the jury might thereby infer that it was the opinion of the court that the testimony of the accomplice was true, and that in order to relieve such charge of the criticism that it was upon the weight of the testimony, the jury should be further instructed that before ¡they could convict upon such accomplice’s testimony, they must believe that such testimony was true. Whatever might be thought pf the correctness of these decisions at this late day, they have become a settled rule of this court, and the profession generally, as well as trial judges have come so to regard it. However, testing 'the charge of the court by the strictest rule ever laid down by this tribunal, we think it is substantially beyond just criticism and follows the doctrine laid down in the cases above cited. In addition to the charge on accomplice’s testimony, and after the definition of the offense of theft, the court charged on the law of principals, reasonable doubt and the defense of alibi.
3. There is complaint made in the motion for new trial that the court erred in that it did not instruct the jury as to the meat found
in defendant’s smokehouse, and that they must believe that the appellant took the cow from Ford, and could not convict if they believed anyone else took the cow, and that defendant subsequently came into the possession of a part of the meat, etc. We do not think that this issue was raised in the evidence further than as it was connected with the general proposition as to whether appellant was guilty of the theft of the cow in question.
4. Again, it is urged that the court- erred in that he failed in his charge to give an instruction on reasonable explanation in connection with appellant’s recent possession of meat presumably taken from the stolen cow. The record' does not show that the defendant made any explanation when the meat was found in his smokehouse, or at the time of liis arrest. One of the other parties charged with the crime, probably John Davis, did tell the officer that he had bought the meat from one Frank Johnson, but the evidence shows without conflict that at this time appellant was not present. Nor does the statement of John Davis connect appellant as being present at the time the meat was acquired. The question is, therefore, whether appellant is entitled to the benefit of a charge on recent possession of stolen property where he made no such explanation himself, but where an explanation was made by a codefendant. Wo do not think so. The rule is well settled that where a defendant is found in possession of recently stolen property, and there is no explanation of his possession, the court is not authorized to charge on such phase of the case. Grande v. State, 37 Texas Crim. Rep., 51.
5. Again, it is urged that the court erred in his charge to the jury in instructing them on the law of principals, for that there was no evidence in the case showing or tending to show that appellant was the principal in the original taking of- the alleged stolen cattle, and because same would warrant the jury in finding appellant guilty, regardless of whether he was actually present or participated in any way in the commission of the offense. In this connection it may be stated that when Johnson came on the scene where the animal was, appellant was not at that' time present. The animal had evidently been killed a very short time before this. Very soon after this' appellant did appear on the scene, and according to the testimony of Johnson, practically took charge of the situation, gave directions as to where the remains of the animal should be taken, how covered up, how placed, and further what disposition should he made of the meat cut from the animal’s body, and even. of the journey to be made to his house. These facts unquestionably raise the issue as to his guilty participation in the original taking.
6. Finally, it is urged that the verdict of the jury is unsupported by the evidence, and absolutely without evidence to sustain it, in that there is no evidence outside of that of the accomplice, Thomas Johnson, going to show, or tending to show, that appellant had any connection whatever with tiie theft of the animal alleged
to have been stolen, or that he had ever entered into any conspiracy to steal said cow, and even the testimony of the accomplice wholly and absolutely fails to show that appellant was guilty of the original taking of the cow alleged to have been stolen. We can not accede to this conclusion. On the contrary, we think the evidence not only sufficient to justify the jury in convicting the appellant, but it raises in our minds the almost certain conviction that he was concerned in the theft.
Finding no error in the proceedings of the court below, the judgment is affirmed.
Affirmed.