
    WILLIAMS v. STATE.
    (No. 9943.)
    (Court of Criminal Appeals of Texas.
    March 10, 1926.
    Rehearing Denied April 21, 1926.)
    1. Criminal law &wkey;>5!2 — Testimony of accomplice as to defendant accompanying another in burglarizing a house and returning with stolen property, together with evidence of possession of stolen property by defendant, held to show him to be principal in burglary.
    Testimony of accomplice that defendant, after inspecting burglarized premises, left his camp with companion, who had declared his intention of entering house, and that they returned later with stolen property, together with proof of- possession of stolen property by defendant, held sufficient to show defendant to be principal in burglary.
    2. Criminal law &wkey;>5ll(6) — Possession of stolen property connects defendant with commission of burglary, and is sufficient to corroborate accomplice.
    Proof of possession of stolen property by defendant tends to connect him with commission of burglary, and is sufficient evidence to corroborate accomplice.
    3. Criminal law <&wkey;424(l).
    Where parties were acting together in commission of burglary and were in possession of fruits of crime, proof of possession of one was admissible against the other.
    4. Criminal law c&wkey;424(0 — Act of cooonspirator in hiding property admissible against others, where stolen property was being used in common.
    Where coconspirators were using stolen property in common and occupying same premises, act of one in hiding property is admissible against others.
    5.Criminal law <&wkey;>4l9,’420(l) — Testimony by owner as to recovery of stolen property from sheriff’s office held not hearsay.
    Admission of testimony by owner of stolen property that he recovered it from sheriff’s office was not against rule excluding hearsay, where sheriff testified that he recovered property and owner took charge of it.
    <g=3For other cases see same topic and KEY-N UMBER in ail Key-Numhered Digests and Indexes
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    A. C. Williams was convicted of burglary, and be appeals.
    Affirmed.
    Lon Brooks, of Anson, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for tbe State.
   MORROW, P. J.

Tbe offense is burglary; punishment fixed at confinement in tbe penitentiary for a period of two years.

Tbe evidence shows that tbe home of J. W. Pricbett was burglarized and certain articles of bedding and tableware taken therefrom. These articles, or some of them, were subsequently recovered.

According to tbe testimony of Viola May King, an accomplice, tbe appellant, A. C. Williams, C. A. Skirlock, and tbe witness were traveling together in an automobile. They stopped at a bouse, which circumstantially appears to have been that of Pricbett. There was no one present at tbe bouse. At night after passing tbe bouse, Skirlock and tbe appellant left tbe camp, which was occupied by tbe three persons mentioned, Skir-lock stating in tbe presence of the appellant that be was going to tbe bouse mentioned. They soon returned with bed clothes and other articles which were afterwards identified by Pricbett as having come from bis bouse. Tbe articles were recovered some weeks later. Tbe accomplice testified that tbe articles were carried in their car to various places and used by tbe appellant.

According to tbe sheriff who searched tbe premises and discovered tbe property, Skir-lock, Williams, a,nd tbe state’s witness were occupying a three-room bouse. Skirlock occupied tbe upper room, Williams and tbe accomplice occupied one of tbe lower rooms, and tbe other room was used as a kitchen. Some of the articles were found in tbe upstairs room and some of them in the bedroom downstairs. Some tableware which was also taken was discovered on tbe premises. All of tbe parties mentioned were present at tbe time tbe property was recovered. One of tbe sheets was found upon tbe bed which, according to tbe accomplice, was occupied by Williams and herself.

Tbe facts in Russell’s Case, 218 S. W. 1049, 86 Tex. Cr. R. 609, in our opinion, distinguish it from the present. The conviction of Russell depended almost exclusively upon evidence that he possessed the stolen property from the burglarized premises, which were occupied by the appellant, his wife, and one Yell. From the opinion, we quote:

“The size of the house, the number of rooms that it contained, the location of the property, whether found in a room occupied by appellant, or Yell, or where, are not disclosed, though manifestly the evidence was at hand, and available to the state. Was he in possession of the property? Was his possession exclusive? Did he exercise a conscious assertion of property over it? We do not know. In the absence of an effort on the part of the state to develop the fac.ts which were manifestly in their possession, and which would tend to answer these questions essential to the state’s case, the inference or presumption arising from such absence is in consonance with the presumption of innocence with which the law surrounds the accused, and not against it.”

Russell presented by cogent evidence the theory of alibi, and the opinion discloses weaknesses in the state’s case other than those mentioned in the quotation. The present case reveals very pertinent testimony from the accomplice going to show that the appellant, after inspecting the burglarized premises and learning that the owner was away from home, left his camp in company with Skirlock, who had declared his intention to go to the house; that appellant and Skirlock' returned with the stolen property in their possession; that the three made use of it; that it was in the house occupied by them, a part of it being in the room occupied by the appellant and upon the bed upon which he slept. It is not upon the possession of the ‘ stolen property in the present case that the state relies for a conviction, but such possession used to support and corroborate- the direct testimony of the state’s •witness, who was an accomplice. The burglary was proved aliunde her testimony. If the evidence which she gave was true, the appellant was connected with the burglary as a principal. The proof of the possession of the stolen property by the owner and the sheriff tends to connect the appellant with the commission of the offense, and is deemed sufficient evidence to corroborate the accomplice.

The accomplice testified that when the parties returned to the camp after they had gone together with the express intention of g.oing to the house which they had previously passed, she was asked what, if anything, they had in the car when they returned. Objection was urged upon the ground that, if Skirlock had any of the stolen property, that fact would not be admissible against the appellant. We think this contention is not tenable. The parties were acting together, and were in the same unlawful enterprise. They were in possession of the fruits of the crime. Under the circumstances detailed, the. act of eacbi was admissible against either. Richards v. State, 110 S. W. 432, 53 Tex. Cr. R. 400; Hays v. State, 236 S. W. 463, 90 Tex. Cr. R. 192; Underhill’s Crim. Ev. (3d Ed.) § 566.

The accomplice testified that when she became aware that the premises would, be searched she hid some of the property. This bill, we think, shows no error. The evidence shows that the three were occupying the same premises,,had remained together’since the offense was committed, and were using the stolen property in common. They were all coconspirators, in possession of the fruits of the crime, and the act of one in an effort to suppress the evidence of crime would not be inadmissible against the others. Under-hill’s Grim. Ev. (3d Ed.) § 472; Rucker v. State, 101 S. W. 804, 51 Tex. Cr. R. 222; Wilson v. State, 156 S. W. 204, 70 Tex. Cr. R. 340.

The receipt of testimony of Prichett that he recovered the stolen property from the sheriff’s office was not against the rule excluding hearsay. The sheriff testified that he recovered the property, took it to his office, and that Prichett came there and took •charge of it. Prichett testified that he identified it and got it from the sheriff’s office.

The judgment is affirmed.

On Motion for Rehearing

HAWKI.NS, J.

Appellant relies on Russell v. State, 218 S. W. 1049, 86 Tex. Cr. R. 609, as authority supporting his renewed contention that the evidence is insufficient to support the conviction. We think there is a clear distinction in the facts of the two cases. In Russell’s Oase the state relied solely upon evidence of possession of recently stolen property, and application of the principle of law governing in such cases was called for. In the present case the testimony of the accomplice makes a complete case of guilt, and we think other facts furnish the corroboration requisite.

The motion for rehearing is overruled.  