
    WALKER v. STATE.
    (No. 7709.)
    (Court of Criminal Appeals of Texas.
    June 6, 1923.)
    I.Criminal law <&wkey;511 (2) — Rule for testing sufficiency of evidence to corroborate accomplice’s testimony stated.
    In determining the sufficiency of evidence to corroborate an accomplice, the rule is to exclude from consideration the accomplice evidence and look to the other testimony in the case, to ascertain if it tends to connect accused with the commission of the crime under investigation.
    2. Criminal law <&wkey;5I I (6) — Evidence held Insufficient to corroborate testimony of accomplice that accused aided in theft of automobile.
    Evidence that an automobile having a fender missing was stolen from C., that two months later it was discovered in the possession of H. with a new fender, and that at about the date of the theft two unidentified men bought a rear fender, held insufficient to corroborate testimony of an alleged accomplice that accused changed the engine numbers in aid of the theft.
    3. Receiving stolen goods <&wkey;6 — One changing engine numbers of automobile not guilty of receiving stolen goods.
    One who aids in the conspiracy to steal an automobile by changing the engine numbers is not guilty of receiving stolen property, but is guilty either of theft or of being an accomplice to the theft.
    Appeal from District Court, Comanche County; J. R. McClellan, Judge.
    Rowe Walker was convicted of receiving stolen property of the value of more than $50, and he appeals.
    Reversed and remanded.
    A. E. Hampton, of De Leon, and Callaway & Callaway, of Comanche, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for receiving stolen property of the value of more than $50, Punishment, two years in the penitentiary.

A serious question raised is the sufficiency of the evidence to support the conviction, and this turns upon the alleged failure to corroborate an accomplice witness. Robert Howard was an accomplice, so recognized by the court in charging the jury. In substance Howard testified that on the night of August 20, 1922, he was driving in an automobile along a road in Comanche county, and there met Tom Walker, who was driving a comparatively new Ford, but with a right rear fender missing; that witness and Tom Walker engaged in conversation, and that about that time Jud Hanson came up; that the three of them took the car and left it in a pasture during the night; that witness and Tom Walker went to De Leon and told Rowe Walker (appellant) about having the car, and wanted appellant to go and change the numbers on the car that night: this, however, he declined to do until the next morning, when witness went back to De Leon and took appellant to where the car was; that he made some changes in the engine numbers on the car; that witness and appellant then went in witness’ car to Stephenville, where appellant fixed up a bogus bill of sale, and got some highway numbers; from Stephenville they went to Des-demonia, where appellant bought a new right rear fender for the stolen car, and that witness and appellant returned late in the afternoon to where the car had been left in the pasture; that after putting the fender on the car witness took it and went to Rotan, and stayed some two weeks.

It further appears from the evidence of the witness Howard that he, Tom Walker, appellant, and Jud Hanson had entered into an agreement or conspiracy to steal a car which was to be turned over to Hanson. It appears to have been witness’ part of the agreement to aid in disguising the car and getting it out of the neighborhood where it was stolen’ until the investigation into its loss died down; that appellant’s part was to change the engine numbers, and that Hanson was to pay him'$200 for his part in the transaction, so far as this particular car was concerned. After Howard returned from Rotan, he .delivered the car to Hanson.

In 'determining the sufficiency of the evidence to corroborate an accomplice, the rule is to exclude from consideration the accomplice evidence, and look to the other testimony in the case, to ascertain if it tends to connect accused with the commission of the crime under investigation. No witness who testified, other than the accomplice, ever saw Rowe Walker or Tom Walker (the latter being the party alleged to have stolen the car) in possession thereof, or testified to any connection they had either with the theft of the car or the subsequent disposition thereof. The car in question belonged to R. ID. Coleman, who lived at Comanche. About August 20,1922, it was stolen from him. The iright rear fender was off. Two- months after the theft the car was found in the possession of Jud Hanson. At that time it had a new right rear fender on it. Coleman identified it by this new fender and certain dents or marks on the other fenders, Coleman had no knowledge as to the identity of the thief. The evidence shows that appellant was a large man, weighing about 185 pounds and about 6 feet tall; that Howard was a smaller man, weighing about 135 pounds. Mansall and Rushing operated a garage in the town of Desdemonia. They testified that about the last of August or the first of September, 1922, two men came to their garage, and that, while one was getting gasoline for the car, the other bought a rear fender for a Ford automobile. These witnesses do not undertake to say whether it was a right rear fender or a left rear fender, nor do they in any way undertake to identify appellant and Howard as the two men engaged in that transaction. They only testified that one was a larger man than the other. Neither do they undertake to identify the new fender on the Coleman ear as the one sold by them.

There is no other testimony in the record tending in the least to connect appellant with the Coleman car in any way whatever. It .is apparent from what has been detailed that, if the evidence of the accomplice witness Howard is eliminated, all the evidence in this record would show is that Coleman had a car stolen from him, which at the time was without a right rear fender; that two months thereafter this car was discovered, not in the possession. of appellant, but in the possession of Jud Hanson, and that at that time it had a new fender on it; that about the date of the theft two unidentified men bought a rear “fender from a garage in Desdemonia. It may be that appellant is guilty of the offense charged against him, but the' state is far from meeting the requirement of the law with reference to corroborating an accomplice witness before we can permit a conviction to stand. This court has been called upon to set aside convictions in many cases because of the insufficiency of the corroboration of an'accomplice witness, but the law remains upon the statute books unchanged, and we have no option but to apply it, and reverse where it is not complied with. The learned trial judge should have granted a new trial, and for his failure to do so the judgment must be reversed.

In the event the state - should be able to secure other corroborating evidence, and the case should be again tried, there is another question raised by appellant to which we call attention. It is his contention that the evidence shows a conspiracy among Howard, Tom Walker, Jud Hanson, and appellant to steal the car; that appellant, although not present at the time the car was actually stolen, subsequently performed his part under the agreement or conspiracy, and is therefore guilty either of theft or as an accomplice to the theft, and not of receiving stolen property. We do not take the time to analyze the evidence, and refrain from expressing an opinion upon the point. We do, however, call attention of the proseouting officer to the following authorities, in order that he may have the benefit thereof in proceeding further with the prosecution, in the event it should be thought desirable to do so. Smith v. State, 21 Tex. App. 107, 17 S. W. 552; Simpson v. State, 81 Tex. Cr. R. 389, 196 S. W. 835; Burow v. State, 85 Tex. Cr. R. 133, 210 S. W. 805; Cone v. State, 86 Tex. Cr. R. 291, 216 S. W. 190; Kolb v. State, 88 Tex. Cr. R. 593, 228 S. W. 210; Glasser v. State, 90 Tex. Cr. R. 116, 233 S. W. 969.

For the reason stated, the judgment must be reversed, and the cause remanded. 
      <@=»For other oases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes
     