
    DAVIS v. STATE.
    (No. 5830.)
    (Court of Criminal Appeals of Texas.
    May 26, 1920.)
    1. Larceny ¡§=35 — Taking of casing from abandoned oil well valued at more than $50 would be theft.
    Defendant, if going with others to an abandoned oil well and taking therefrom certain casing of the value of over $50 and selling it, would be guilty of theft.
    2. Criminal law <§=3507(1) — One participating in theft held an accomplice whose testimony required corroboration.
    In a prosecution for the theft of oil well casing, one whom the state’s evidence showed to have gone with defendant and to have taken the casing would be an accomplice, if defendant was guilty, and defendant’s appropriate request for a special.instruetion that such person, used by the state as witness, would be an accomplice and would have to be corroborated, should have been given.
    3. Criminal law ¡§=3763, 764(17) — Charge as to proof of other offenses held improper as on weight of evidence.
    In prosecution for. theft; wherein the state put in evidence of extraneous offenses to connect defendant with the offense and to show his purpose in being connected with it, a charge that jury might consider evidence of the theft of other property at same time and place, to establish the identity in developing the res gestas of alleged offense or to prove defendant’s guilt by circumstances connected with the theft or to show his intent as to property charged to have been stolen, was erroneous, as being on the weight of the evidence.
    4. Larceny ¡§=350 — Checks given for payment on sale of stolen property held admissible.
    In a trial on a charge of the theft of casing from an abandoned oil well alleged to have been taken and sold by defendant, wherein he denied any guilty connection with the matter and offered evidence of an alibi, checks given for the payment of the casing in the profits of which defendant shared were admissible.
    5. Criminal law ¡§=3 1099(8) — Agreed statement no! filed within tiiqe owing to fault of judge will be considered.
    Where the statement of facts was not filed within the 90 days requisite in order to entitle it to consideration, and an affidavit of the trial judge assumed all responsibility for the delay on account of the pressure of business and sufficiently exonerated defendant from any want of diligence, and the statement of facts was agreed to and certified by the judge to be correct, it should be considered on appeal.
    Appeal from District Court, Eastland Counity; E. A. Hill, Judge.
    G. W. Davis was convicted of the theft of .property of a value of more than $50 and sentenced, and he appeals.
    Reversed, and cause remanded.
    Mays & Mays, of Pt. Worth, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of the theft of 15 joints of 6%-inch casing of over the value of $50 and allotted two years in the penitentiary.

The state’s evidence is that appellant, his brother, and Dawson went to an abandoned oil well and took the casing mentioned in the indictment and sold it. Under the state’s case, if they did it was theft. Appellant’s contention was that he did not go to the place where the property was situated, and knew nothing about it being stolen property; that he was a teamster and hauled anything for which he was employed in and about the oil field. The state used Dawson as a witness. Under the law and facts, if appellant was guilty, Dawson was an accomplice. The court did not so charge as to accomplice testimony as shown by his charge copied in the record. There is a bill of exceptions which states that he did submit the issue to the jury as to whether or not Dawson was an accomplice. Outside of this bill of exceptions, we fail to find a charge in the record. It is not embodied in the court’s charge. Appellant requested a special instruction to the effect that Dawson would be an accomplice and'would have to be corroborated. The requested charge was appropriately in the terms of the law and should have been given. This matter is indefinite, but upon another trial the court should instruct that Dawson is an accomplice.

The state introduced extraneous matters and offenses and circumstances to connect appellant with this offense and to show his purpose in being connected with it. The court charged the jury as follows, as shown by the bill of exceptions:

“In this case if you believe there is evidence tending to prove the theft of other property than that alleged in the indictment to have been .stolen, and at .the same time, and place, you are instructed that you can consider such testimony for the purpose for which it was admitted, that is, to establish the identity in developing the res gestae of the alleged offense or to prove the guilt of the accused by circumstances, connected with the theft, if any, or to show intent with which the accused acted with respect to the property for the theff of which he is now on trial, and you will consider it,” etc.

Exception was reserved to this charge, among other reasons, because it was on the weight of the evidence. This charge has been condemned in a number of opinions as being on the weight of the evidence. Appellant’s exception to the charge should have been sustained and a proper charge given.

Exception was also reserved to various and sundry matters that were introduced which tended to connect the defendant with this transaction criminally, and to show his purpose and to obtain the money from the results of the theft and selling the property. We are of opinion this evidence under this record was admissible. It is unnecessary to recapitulate the testimony. The appellant denied any guilty connection with it, and introduced evidence to show that he was not present at the time of the taking. There were cheeks also introduced given for the payment of this property in the profits of which appellant participated. This was introducible under the facts of this case.

There is a bill of exceptions to the manner in which the jury was obtained. This will not occur upon another trial and is not discussed.

Appellant contends that he was deprived of his statement of facts without fault on his part, and for .this reason the judgment should be reversed. The statement of facts was not filed within the 90 days as seems requisite under the decisions in order for its consideration. The trial judge files an añida vit exonerating appellant from any blame in not having his statement of facts filed within time and assumes all responsibility. Without setting out his reasons, we think they are sufficient to exonerate the appellant from any want of diligence. The statement of facts, however, is agreed to and certified by the judge to be correct. He says that he overlooked and failed to sign it in time on account of reasons stated; among others, the pressure of business in the trial of other cases. The correctness of the statement of facts is not assailed, but is agreed to and signed by the attorneys. See Branch’s Grim. Law, § 41; Vernon’s C. C. P., p. 837, and note 20, for cases; Bitel v. State, 78 Tex. Or. R. 552, 182 S. W. 318; where quite a number of cases are collated; Gibbs v. State, 70 Tex. Cr. R. 278, 156 S. W. 687; Tankersley v. State, 51 Tex. Or. R. 171, 101 S. W. 234. We are of opinion the statement of facts, under the statement of the judge, should be considered and is considered in passing upon the case.

On account of the errors above mentioned, this judgment will be reversed, and the cause remanded. 
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