
    KAUFMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 14, 1913.
    On Motion for Rehearing, June 18, 1913.)
    1.Criminal Law (§ 1090) — Exceptions in Lower Court.
    Where the court refused bills of exception stating that no exceptions were made or bili taken on the trial, the alleged exceptions could not be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§ 1093) — Appeal—Bills oe Exception — Sufficiency.
    Bills of exception reciting that witnesses for the state over accused’s objection were permitted to testify to certain facts, to which accused objected on certain grounds and then and there excepted, were insufficient to require or authorize the court to consider them.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    3. Criminal Law (§ 372) — Evidence—Similar Offenses.
    On a trial for receiving and concealing stolen goods, the testimony of the thief, from whom it was claimed accused received the goods, that for four years he had a contract with accused and his father and brother by which he and his associates were to steal goods and accused and his father and brother were to buy them from him, and his testimony as to the details of transactions committed in consummation of such agreement, was properly admitted to establish a system of like crimes committed by accused, where the witness testified that the particular goods involved were stolen pursuant to an agreement between him and accused, and the court properly charged as to the purpose for which such evidence could he considered', and that accused could not be convicted for other offenses and required corroboration of the witness’ testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. § 372.]
    4. Criminal Law (§ 507) — Instructions— Corroboration of Accomplice.
    On a trial for receiving and concealing stolen goods, the court properly charged that the thief from whom it was claimed accused received the stolen goods, and who testified that they were stolen pursuant to an agreement between him and accused, was an accomplice and properly required corroboration of his testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1082-1096; Dec. Dig. § 507.]
    5. Receiving Stolen Goods (§ 4) — Acts Constituting Receipt.
    A person who, knowing that goods were stolen, directed the thief to deliver them to him by placing them in his barn received the goods when they were placed in the barn, although he was not personally present and did not manually receive them, and hence the court properly so charged and refused to charge an alibi, though there was evidence showing accused’s absence when the goods were placed iu his barn.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. § 6; Dec. Dig. § 4.]
    6. Criminal Law (§ 721%) — Argument-Comments on Failure to Produce Witnesses.
    On a trial for receiving stolen goods, where the state did not claim that accused personally received them, but only that he directed that they should be placed in his barn, it was proper to permit the county attorney in his argument to refer to accused’s failure to call as witnesses several relatives of his who were present when the goods were placed in the barn and when they were found and taken therefrom by the officers.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. § 721%.]
    On Motion for Rehearing.
    7. Criminal Law (§ 1093) — Appeai>-Bills of Exceptions — Sufficiency.
    A bill of exceptions complaining of the refusal to permit accused on cross-examination of ■a witness to ask if he had ever committed robbery and of his confinement to inquiries regarding thefts and burglaries, because the inquiry was proper, tended to impeach the witness and, because accused expected to prove that the witness had committed robberies and had been in-dieted therefor, was insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    S. Witnesses (§ 345) — Impeachment—Commission of Crime.
    A witness cannot be impeached by proof of his guilt of crimes of which he has never been indicted nor convicted.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. § 345.]
    ■■9. Receiving Stolen Goods (§ 1) — Nature and Elements.
    A person who, knowing that goods were stolen, directed the thief to deliver them to him by placing them in his barn was guilty of re-ceiving stolen goods, even conceding that an agreement between accused and the thief, pursuant to which the goods were stolen, would have authorized the state at its option to pros-■eeute accused as an accomplice to the thief.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 1-3; Dec. Dig. § 1.
    
    For other definitions, see Words and Phrases, vol. 7, p. 5993.]
    10. Indictment and Information (§ 191)— Issues, Proof and Variance.
    The offenses of theft of property, of being an accomplice to the theft of such property, and of receiving and concealing the same property are entirely separate and distinct offenses, and, under an indictment charging one of such offenses, a party cannot be convicted of either of the others.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 265, 604-621; Dee. Dig. § 191.]
    11. Criminal Law (§ 59) — Parties to Offenses — Accomplices.
    A person cannot be an accomplice to the commission of a crime or convicted as such unless there is a principal shown to be guilty of the main offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 71, 73, 74, 76-81; Dec. Dig. § 59.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Kaufman was convicted of concealing stolen property, and lie appeals.
    Affirmed.
    Lively, Nelms & Adams, of Dallas, and W. F. Ramsey, of Austin, for appellant. Ben Savage, of Dallas, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was convicted for concealing stolen property and his punishment fixed at eight years in the penitentiary.

Most, if not all, of the questions attempted to be raised by him are by some 60 bills of exception. A large number of them were refused outright, by the court, stating that no exceptions were made and no bill taken on the trial. Of course we cannot consider them.

The state claims that the others in no way comply with the rules long and well established, so that this court can review the questions attempted to be raised by them. We will quote two of them in full, except their headings, which merely state the number, style of the cause, and the court where pending. One is: “Be it remembered that upon the trial of the above-entitled and numbered cause the following proceedings were had: Fletcher Howard, a witness for the state, over the objection of the defendant, was permitted to testify that in the latter part of May he (the witness) stole some eggs from the Santa Fé yards and delivered the same to the defendant herein, and that the defendant paid him $24 for same, to which defendant objected because same was evidence as to an extraneous and independent matter and was immaterial, irrelevant, and hurtful to defendant, to which the defendant then and there excepted at the time and now tenders this his bill of exceptions and asks that the same be approved, signed, and filed as a part of the record in this cause. Which accordingly done, this-day of October, A. D. 1912, with this explanation: This matter was admitted as a part of the evidence of an extraneous theft committed under the contract with this witness and other negroes, and the goods delivered to the defendant, and was admitted as evidence of the ‘system.’ ” Another is: “Be it remembered that upon the trial of the above-entitled and numbered cause the following proceedings were had: W. H. Black, a witness for the state, over the objection of the defendant, was permitted to testify that he had shipped 100 cases of eggs from Clifton, Tex., to Ben Ablon at Dallas, Tex., and that thereafter he came to Dallas, Tex., and went to Ben Ablon’s cold storage house and there found several cases of the eggs that were packed like eggs he shipped, and that said several cases of eggs had the name Sam Kaufman on same; that at the time he went to Ben Ablon’s cold storage house and there looked at said eggs; that he had two detectives of the city of Dallas with him; that he found two car loads of eggs in said storage house; and that the cases he saw compared with the ones he packed and shipped from Clifton to Ben Ablon at Dallas; defendant objected because same was as to extraneous and independent matter in no way connected with the case on trial, because there was no testimony showing that the name ‘Sam Kaufman’ was placed upon said egg cases by the defendant herein or that same was done with his knowledge or consent, and because same tended to prejudice the jury against the defendant, was irrelevant and immaterial, prejudicial, and hurtful to defendant, to which the defendant then and there excepted at the time and now tenders this his bill of exceptions and asks that the same be approved, signed, and filed as a part of the record in this case. Which is accordingly done this-day of-, A. D. 1912, with this explanation: This was part of the evidence of extraneous crime admitted by the court as evidence of ‘system.’ ”

These are but samples of all of the others. Some of them may have a little more in the way of objections, others less. Not one of them is in such condition as to require or authorize the court to consider them. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Ortiz v. State, 151 S. W. 1058; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612. Several other bills attempt to present that the county attorney was permitted to ash a certain claimed leading question. Each of these are as defective or more so than the others, but in no event do they present any error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215.

One of the most important questions attempted to be raised by most of these bills is appellant’s contention that proof of other like crimes, or crimes of the same nature, alleged to have been committed by appellant, were inadmissible for any purpose. The rule is that independent crimes by an accused are ordinarily inadmissible; that an accused cannot be convicted of the crime for which he is on trial by showing that he committed at other times like crimes. But, while this is the rule, there are exceptions to it as well established as the rule itself. In fact, such exceptions might be considered and are also rules as well established as the said rule above mentioned. These exceptions are stated by Mr. Wharton, one of the ablest law-writers in this country, in his volume 1, § 31, on Criminal Evidence, as follows: (1) As part of the res gestee. (2) To prove identity of person or of crime. (3) To prove scienter or guilty knowledge. (4) To prove intent. (5) To show motive. (6) To prove system. (7) To prove malice. (8) To rebut special defenses. (9) In various particular crimes. In section 35 he says: “Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses .is admissible to establish such knowledge.” Again in section 39 he says: “When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system. In order to prove purpose and design, evidence of system is relevant; and in order to prove system, collateral and isolated offenses are admissible from which system may be inferred.” These exceptions or rules are so well established, have been so often applied and held by this court, that we think it is unnecessary to collate them; but see Melton v. State, 63 Tex. Cr. R. 365, 140 S. W. 230, where a few of the cases and authorities are cited. See, also, Hennessy v. State, 23 Tex. App. 355, 5 S. W. 215; Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; Pelton v. State, 60 Tex. Cr. R. 412, 132 S. W. 480, Ann. Cas. 1912C, 86; Long v. State, 39 Tex. Cr. R. 545, 47 S. W. 363. It is needless to cite the many other cases on these points.

The testimony of Fletcher Howard, who was an accomplice and a negro, was to the effect that he had worked for appellant and for appellant’s brother and father, who run a mercantile establishment in Dallas for a number of years prior and up to the time the offense charged in this case, commencing work with him and them in 1905 or 1906, and had worked for them off and on from that time up to the time of the offense charged in this case or shortly prior thereto; that his work therein was that of a porter in their saloon and driving a delivery wagon for appellant and his said father and brother, or appellant and one or the other of them in their grocery business; that for the years 1909 to 1912, inclusive, he had a contract with appellant and with him and his brother and father to the effect that he and his associates were to steal goods from the railroad cars and wholesale houses in Dallas, and appellant and they would buy them from him and his associates. And this contract was carried out by both of these parties during these years. Then he detailed several such transactions during the year 1912, prior to the time this offense was charged to have been committed; that in every instance appellant bought these stolen goods from him and his associates and paid him and them therefor, knowing at the time that they were stolen and that all these transactions were carried out in consummation and in accordance with said trade between them. It is unnecessary to detail these various transactions. This accomplice Howard was corroborated amply and sufficiently by other witnesses and circumstances tending to show and showing the said several transactions as testified to by Howard. The theft by Howard and his associates of the goods charged to have been received by appellant in this case was clearly and unquestionably established, not only by Howard, the accomplice, but by many other witnesses and circumstances clearly detailed in the evidence. As to these particular goods in this case, Howard testified that in the evening before these goods were stolen at night he and his associate, who was with him and helped steal them, were to deliver them in appellant’s barn for him, situated close to his said store and residence in Dallas. They were so delivered and found in said barn immediately after their delivery . therein. It was also shown that appellant kept his horses at this barn and that he had charge of said barn. The goods eharged to have been stolen and received by appellant in this case consisted of a case of dry goods; different bolts thereof containing, of one grade, 2,747 yards worth about 17% cents per yard, and 768% yards of another grade, worth about 22% cents per yard, and of a total valuation of over $600.

In this case the evidence was amply sufficient to show appellant’s guilt of the offense with which he was charged. The evidence of the various other comparatively recent offenses was clearly admissible in this case to establish, and it did establish, a system of like crimes committed by appellant.

The court in his charge properly told the jury for what purpose they could consider the evidence showing or tending to show said other crimes and that appellant was not on trial for the commission of any of those offenses and they could not convict him therefor.

The court also charged that said Fletcher Howard was an accomplice and fully and properly required the corroboration of his testimony in accordance with law.

The testimony shows that the theft and delivery of the goods in this case occurred about 10 o’clock at night. Appellant also showed that he left his home and store, where said barn was in which said goods were delivered, about or shortly before 8 o’clock that night; that he went to a public speaking in the colliseum at the fair grounds, which was a mile and a half from said barn and said store and residence, and remained at said public speaking until after 10 o’clock and did not return to his said home until 11:30 or later that night. In other words, he showed that he was not at said barn where said goods were placed at the time they were placed there, but at another and a different place. The court did hot charge on alibi. He was requested to charge on that subject. The court gave this charge on the subject of receiving stolen property: “I will define to you npw what the law means by receiving property acquired by theft. You are instructed that if you believe from the evidence beyond a reasonable doubt that the property described in the indictment was obtained from W. D. Stetler by Amos Parker and Fletcher Howard, under circumstances and in such manner that the acquisition thereof comes within the meaning of the term theft, and you further find and believe from the evidence beyond a reasonable doubt that, prior to the time that the same was so taken by the said Amos Parker and Fletcher Howard, a contract and agreement had been entered Into by Fletcher Howard and Amos Parker on the one hand, and Sam Kaufman, or Sam Kaufman and others, on the other hand, that the said Parker and Howard should steal the said property and deliver the same on the premises of the said Sam Kaufman, or in the barn under the control and management of the said Sam Kaufman, or under control of Sam Kaufman and others, and you further find and believe beyond a reasonable doubt that in pursuance of said agreement and contract with the said Sam Kaufman, if any, the said property was so fraudulently taken from the said W. 0. Stetler and so delivered by the said Amos Parker and Fletcher Howard in the said barn or premises, owned and under the control and management of said Sam Kaufman, or under the control of Sam Kaufman and others, then this would constitute the receiving of said property by said Sam Kaufman.” Appellant urges that the court erred in refusing to charge on alibi and in giving the last charge quoted just above.

Mr. Bishop, in his New Criminal Law, vol. 2, § 1139, in treating of the act of receiving stolen goods, says: “The leading doctrine here is that the goods must come under the control of the receiver; yet the control need not be manual. For instance, if they are in the hands of a person whom he can command in respect of them, they may be deemed to have been received. And one who allowed a trunk of stolen goods to be sent on board a vessel in which he had taken passage was held to have received them.”

In 34 Cye. p. 517, in treating of the receiving, it is said:' “To be convicted of receiving stolen goods, defendant must have had such control of the property as amounts to constructive possession, at least; but the possession need not be actual and corporeal. It may be through the instrumentality of another person, and the offender need not have seen the goods.”

In Huggins v. State, 41 Ala. 399, which was a conviction for receiving stolen property, it is held: “The charge given at the instance of the solicitor, to the effect that the defendant might commit the offense without seeing the property, was obviously correct. The defendant could certainly be guilty of committing the felony charged, through the instrumentality of others, without performing the act of receiving or buying in person, or actually seeing the property.”

In the case of State v. Stroud, 95 N. C. 631, it is held: “The court charged, in substance, that if the meat after being stolen was directed by the defendant to be carried to a certain place, he at the time knowing that it had been stolen, it was a receiving in the eye of the law. To constitute the criminal offense of receiving, it is not necessary that the goods should be traced to the actual personal possession of the person charged with receiving. It would certainly made him a receiver in contemplation of law if the stolen property was received by bis servant or agent, acting under bis directions, be knowing at tbe time of giving tbe orders that it was stolen, for qui facit per alium facit per se. It is tbe same as if be bad done it bimself.”

We are clearly of tbe opinion that tbe evidence in this ease justified tbe jury to believe that appellant knew that these goods were stolen by Howard and bis associates and that he directed that they should be delivered to him by placing them in bis barn, which was done. This “was a receiving by him in tbe eye of the law.” It was not necessary under tbe law that he should personally be present nor manually receive the property under tbe circumstances of this ease. Tbe charge of tbe court above complained of was correct, and no charge on alibi should have been given. Tbe court in submitting the case specifically required tbe jury to believe beyond a reasonable doubt that tbe appellant received tbe goods knowing that they were stolen before they could convict him.

Tbe court did not err in permitting tbe county attorney to argue that appellant bad not placed on tbe stand and had them testify any of bis several relatives who were unquestionably shown to be present at tbe time of tbe delivery of said goods in said barn and when they were found and taken therefrom by tbe officers. Sweeney v. State, 146 S. W. 888, 889.

We have carefully considered all of appellant’s claimed errors and have discussed tbe material ones. There being no reversible error, tbe judgment will be affirmed.

On Motion for Rehearing.

In bis motion for rehearing, appellant, by his attorneys, expressly states that, whatever might be their views touching the matters discussed and decided in tbe original opinion, they do not urge any error therein or rehearing thereof. But appellant presents and urges two questions only, which be claims were not referred to in the original opinion.

Tbe first of these questions is that error was committed by the lower court refusing to permit him to ask tbe state’s witness Fletcher Howard and require him to answer, as set up in bis thirty-seventh bill of exceptions. We will here state this bill. After tbe formal part of “be it remembered,” etc., the bill is: “The court refused to permit counsel for tbe defendant, on cross-examination of said witness Fletcher Howard, to ask said witness if be bad ever committed robbery, and was confined by tbe court in bis cross-examination of witness to inquiries to thefts and burglaries, because said inquiry was a proper one, was tending to impeach said witness Fletcher Howard, and tbe defendant expected to prove and could have proven by said Fletcher Howard that be bad committed many robberies and bad been indicted for tbe offense of robbery, to all of which tbe defendant then and there expected at tbe time and now tenders this bis bill of exceptions and asks that tbe same be approved, signed, and filed as a part of the record in this case.” Tbe court, in allowing this bill, qualified it with this explanation: “Tbe court allowed tbe defendant to ask this witness about all indictments against him and also allowed defendant to ask him about thefts and burglaries; these being involved in tbe system and contract be was testifying about. Tbe court did refuse to allow him to be cross-examined as to-whether he was guilty of robberies and other-extraneous crimes which were in no wise connected with tbe offense charged nor involved in its contract and system of tbe Kaufmans and this witness.” By all of tbe decisions of this court this bill is wholly insufficient to require this court to consider tbe' question attempted to be raised. Conger v. State, 63 Tex. Cr. R. 312, 140 S. W. 1112, and James v. State, 63 Tex. Cr. R. 75, 138 S. W. 612. But suppose tbe bill was sufficient to require us to consider it. Taking tbe whole bill and the qualification thereof, it expressly shows that the court allowed tbe defendant to ask this witness “about all indictments against him.” So that the statement in the bill that he expected to prove by the witness that “he had been indicted for the offense of robbery” was not true as a matter of fact. The court, as stated, stated that he allowed him to ask the witness about all indictments against him.

The other feature of the bill shows that he wanted to impeach the witness by proving by him “that he had committed many robberies,” not that he had been indicted or convicted of robbery, but to prove that he was guilty of an independent crime without showing an indictment or conviction therefor.

Mr. Branch, in his Crim. Law of Texas, in section 868, lays down the correct rule in this language: “Mere accusations against or evidence of particular acts of misconduct are not admissible to affect the credibility of a witness. A witness can only be im-i peached as to other offenses by showing that he has been legally charged with a felony or a misdemeanor imputing moral turpitude.” And cites a large number of decisions of this court which clearly support his text. It is unnecessary to cite them here. We have many times recently had occasion to thoroughly investigate the law and our decisions on this subject.

In the recent case of Wright v. State, 63 Tex. Cr. R. 436, 140 S. W. 1109, we held in effect this: “There is no question but that, if a witness was offered for the purpose of proving as a matter of fact that the witness was guilty of specific offense involving moral turpitude or of the grade of felony where no legal proceeding had been instituted against him, such testimony would not be admissible. Conway v. State, 33 Tex. Cr. R. 329 [26 S. W. 401].” And we also held in that case “that where a party is charged by complaint only, and sufficient time has elapsed for an indictment, and none has been preferred, the mere fact of the arrest of a party on a complaint is not legal testimony to go to his impeachment.”

This bill of appellant, therefore, even if considered, presents no error.

The other question urged in appellant’s motion for rehearing is, as we understand it, that the evidence in this case shows that appellant was an accomplice to the theft of the property with which he was convicted of fraudulently receiving and concealing, knowing it to have been stolen, and therefore was improperly convicted for receiving and concealing the property, because he calls attention to two grounds only in his motion for new trial, which he claims raised the question. In the first of these grounds he quotes as follows: “The evidence, if same establishes any guilty connection of the appellant with the property described in the indictment, showed his connection with same to be that of accomplice and not as a principal offender.” It is not stated in this, as is seen, with which particular feature he is an accomplice and not a principal offender, whether the theft of it or the receiving and concealing it. But the other ground 'of his motion for new trial, which he quotes, is to the effect that the evidence “would not show this defendant guilty of either receiving or concealing the property, but would show him guilty as an accomplice in the commission of the offense of theft of the property.” He couples these two grounds as raising the question he urges,, so that, as stated above, as we understand, his contention is that the evidence in the ease shows that he was an accomplice to the theft and not guilty of receiving and concealing the stolen property. This is further borne out by the evidence in the record which appellant quotes, which tends, even from his theory, to show that he was an accomplice to the theft of the property only,

We have carefully considered appellant’s motion and his brief and argument thereon, and the authorities cited. In discussing this question we will not cite the cases to any extent, because the principles that we lay down are so well and thoroughly established that authorities need not be collated.

The offense of theft of property is an entirely distinct and separate offense from that of an accomplice to the theft of such property, and also an entirely separate and distinct offense from receiving and concealing the same property. The theft of it is one offense, an accomplice to the theft of it is another offense, and the receiving and concealing it, knowing it to be stolen, is another offense. An accused cannot be convicted for either of the offenses upon an indictment for one of the other offenses. In other words, an accused cannot be convicted as an accomplice to the theft of the property, nor for receiving and concealing the stolen property, upon an indictment for the theft of it. Neither can he be convicted for the theft of; it, nor receiving and concealing it upon an: indictment as an accomplice to the theft of it. Nor can he be convicted of the theft of it, or as an accomplice to the theft of it upon an indictment for the receiving and concealing it. The principle is clearly illustrated by the opinion of this court through Judge Hurt in McAfee v. State, 14 Tex. App. 675, thus: “A. steals a cow. B., with knowledge-of the theft, buys the cow from A. Shall, we say, thereupon B. stole the cow? Again, A. steals a cow. B. with knowledge of the-theft, buys from A. Are we not forced ro say, therefore, B. did not steal the cow; this, being the real fact of the case? Theft is the fraudulent talcing of property from the possession of the owner, or some one holding-possession for him. There must he a taking, and no subsequent connection with the stolen property, be it in good or had, faith, honest or fraudulent, will constitute theft. If the-evidence fails to connect defendant with the taking, unless by recent possession, this recent possession may be accounted for by proof' of purchase, whether in good or bad faith; and defendant may in lato urge the purchase, notwithstanding he had full knowledge that the seller had stolen the property. It is. true that this would be receiving property knowing that it had been stolen, for which the purchaser, under an indictment charging this offense, could be tried and convicted. But appellant in the case at bar was tried for and convicted of theft. It was this, charge, this offense, he was called upon to meet, and no other; and he had the right to meet and defeat the charge of theft with, any matter which would secure that purpose, although his guilt of another offense should be developed.” This principle has been so. many times and so uniformly held by this, court we do not cite any of the other cases, though they are quite numerous. What is. said in the McAfee Case just above quoted, is equally applicable and might be used as. a complete illustration of each of the offenses. herein above specified, to wit, that of an accomplice to the theft and that of receiving and concealing the stolen property, knowing; it to be stolen.

Again, no person can be an accomplice-without there is a principal, and in order-to convict as an accomplice, even upon.an indictment as an accomplice, the proof must show that there is a principal and that the-principal is guilty of the main offense. In, this instance, that of theft. So-in the offense-of receiving and concealing stolen property. If a party were indicted as an accomplice to, the receiving and concealing the. stolen property, there must be a principal, and- that. principal must be guilty of receiving and concealing it before the accomplice could be convicted as an accomplice to receiving and concealing it.

While the indictment in this case has five separate and distinct counts, as stated by appellant in his motion for rehearing, only one was submitted to the jury. The others were excluded from any submission. The one which was submitted is the one only under which appellant was convicted. So that the case is treated as if only that one count had been in it. The others cannot be used for any purpose.

The evidence in this case cited by appellant in his motion for rehearing in no way intimates or tends to intimate that appellant was an accomplice to the receiving and concealing of this stolen property. He alone is shown in it to be the principal in the receiving and concealing of this property. It is unnecessary to take up and collate the evidence. As we said in the original opinion: “We are clearly of the opinion that the evidence in this case justified the jury to believe that appellant knew that these goods were stolen by Howard and his associate and that he directed that they should be delivered to him by placing them in his barn, which was done. This ‘was a receiving by him in the eye of the law.’ It was not necessary under the law that he should personally be present nor manually receive the property under the circumstances of this ease.”' In the original opinion we also cited and Quoted from the authorities which clearly showed that it was not necessary for the appellant to have been personally present and manually received and seen the property when it was delivered at the time and place which he designated. As stated above, appellant in his motion for rehearing did not contest any of the questions decided in the original opinion and, while not expressly assenting thereto, clearly impliedly did. But, however that may be, we are of the opinion that the evidence which the jury believed clearly established that appellant was guilty of receiving and concealing, the stolen property as a principal, as charged in the indictment, and not as an accomplice to such receiving and concealing.- It might be that appellant could have been prosecuted and convicted, under the evidence cited by appellant, as an accomplice to the theft of the property, instead of having received and concealed it, but he has not the choice. The state has the choice of which crime originating out of the transaction it will prosecute him for. “One answerable for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He is not to elect, but the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or a lower, or of one differing in nature, whether under a statute or at the common law, he cannot be heard to complain; the question being whether it shows Mm to be guilty of the one charged.” 1 Bish. New Cr. Law, § 791; Whitford v. State, 24 Tex. App. 489, 6 S. W. 537, 5 Am. St. Rep. 896; Grisham v. State, 19 Tex. App. 513. “A party may in a criminal proceeding be held to answer for any offense, great or small, which can be legally carved out of the transaction.” Jackson v. State, 43 Tex. 423. “The prosecutor had a right to carve as large an offense out of this transaction as he could, yet must cut only once.” Quitzow v. State, 1 Tex. App. 53, 54, 28 Am. Rep. 396. It is needless to cite the many other authorities to this effect.

The motion for rehearing is overruled.  