
    ALLEN v. STATE.
    (No. 3500.)
    (Court of Criminal Appeals of Texas.
    April 7, 1915.)
    1. Criminal Law <&wkey;202 — Former Jeopardy.
    In a prosecution for receiving stolen property, it was not error to ignore a plea of former jeopardy based on an acquittal of burglary, as the Code of Criminal Procedure specifically provides that prosecution and conviction of burglary will not bar a prosecution for theft or any offense growing out of or connected with it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 386-403, 408, 409; Dec. Dig. &wkey;
    2. Criminal Law <&wkey;772 — Trial — Instructions.
    Though defendant, in a prosecution for receiving stolen property, testified to receiving property on his prior trial for burglary, wherein he was acquitted, and his testimony in the burglary case with other evidence was sufficient to convict, it was reversible error to refuse an instruction in his favor based on the testimony of a witness for the state who testified, as he also did in the burglary case, to facts showing defendant guilty of theft only.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. &wkey;772.]
    Appeal from Montague County Court; Homer B. Latham, Judge.
    Arthur Allen was convicted of receiving stolen property, and he appeals.
    Reversed.
    W. T. Russell, of Nocona, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of receiving and concealing stolen property, and his punishment assessed at 15 days’ imprisonment in the county jail and a fine of $50.

It is made to appear by the record that the store of Elemming Bros., under the care and control of Sam Elemming, was burglarized on the night of March 2d, and, among other things, eleven neckties and three pairs of socks stolen therefrom. Henry 1-Iale, appellant, and some others were arrested, charged with having committed the offense. Henry 1-Iale made an agreement with the state to testily against appellant and others, and he was not prosecuted. Appellant was indicted, charged with burglarizing Elemming Bros.’ store. 1-Ie was tried for that offense and acquitted; he testifying on that trial that on the night of the burglary he (appellant), Henry Hale, and Henry Harper and others went to an entertainment in Bonita. Upon their return they went to a restaurant, and after they had been there awhile Henry Hale called him (appellant) and Henry Harper to one side and told them he had broken open Elemming Bros.’ store, and handed him a hat, some neckties and socks, and he took them and hid them under his coat, and carried them to a barn on Mr. Langford’s place. The jury evidently believed what he said, and acquitted him of the charge of burglary. The state then indicted him., charging him with receiving and concealing the property, knowing it was stolen, To this charge appellant entered a plea of former jeopardy, based on his acquittal of the offense of burglary.

In many ways appellant complains of the action of the court in failing to submit this plea to the jury, to the failure of the court to give his special charges on this issue, and to the action of the court in instructing the jury not to consider the plea of former acquittal. These bills present no error; for the Code of Criminal Procedure specifically provides that a prosecution and conviction for burglarly even will not bar a prosecution for theft or any offense growing out of or connected therewith. In Loakman’s Case, 32 Tex. Cr. R. 564, 25 S. W. 22, this question is discussed in an opinion by Judge Davidson, and decided adversely to appellant’s contention, and this decision has always been followed, and necessarily so by reason of the provisions of our Code of Criminal Procedure.

We do not deem it necessary to discuss but one other question raised by appellant; for it, and it alone, presents error. It appears in the trial for burglary the state used Ilenry Hale as a witness, and he testified on that trial that they all went to the restaurant, and that appellant and Henry Harper were gone awhile, and then returned to the restaurant; that appellant and Henry Harper told him they had broken into the store of Elemming Bros., and they all went into the store together; that he (Henry Hale) took an overcoat and hat and wore them off; that he did not know what the others got out of the store, but the next day appellant told him he had gotten a hat, some neckties, and some socks out of the store, and had put them in the barn where the goods were found.

As hereinbefore stated, on that trial appellant testified and swore that it was Henry Hale who had broken into the store and stole the goods and had given them to him, and he had hid them in the barn, The jury accepted his version and acquitted him. On this trial, in which he was charged with receiving and concealing the stolen property, the state introduced appellant’s testimony on the burglary trial and other evidence, and it was sufficient to authorize, and would sustain, a verdict of conviction for receiving and concealing stolen property. However, on this trial appellant did not testify, and he called only one witness, Henry 1-Iale, and he testified as he did on the burglary trial, adding that he did not steal the neckties and socks out of Flemming Bros.’ store and deliver them to appellant; his testimony being that appellant stole them himself.

Appellant requested the court to charge the jury that, if they found from the testimony that he broke and entered the store in connection with Henry Harper, as testified to by Henry Hale, and they all three entered the store, regardless of who took the articles out of the store, he would be a principal in the commission of the offense and guilty of theft, and, if they so found, they would find him not guilty of the offense of receiving the stolen property from Henry Hale and concealing it. The testimony of Henry Hale put this issue in the case, and the charge should have been given. If appellant was guilty of the theft of the articles, and Hale’s testimony would make him guilty, he could not be guilty of receiving and concealing property he himself had stolen. Because the court failed to submit this issue to the jury will necessitate a reversal of the case. It was clearly raised by the testimony of Henry Hale, and, although the jury might not have believed it, and evidently the court did not, the court is not authorized to take issues of fact away from the jury and decide them himself.

The judgment is reversed, and the cause remanded. 
      <g^>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     