
    (86 Tex. Cr. R. 433)
    SCALES v. STATE.
    (No. 5618.)
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1919.)
    
    1. CRIMINAL LAW <&wkey;780(2) — INSTRUCTION ON SUFFICIENCY OF ACCOMPLICE TESTIMONY TO CONVICT.
    In view of Code Cr. Proc. 1911, art. 801, forbidding conviction on the uncorroborated testimony of an accomplice, in a prosecution for receiving and concealing stolen property, the court should have instructed at defendant’s request that the jury should determine whether or not a witness was an accomplice, his character as such being suggested by his testimony, and, if so, that a conviction could not be founded on' his uncorroborated testimony, this though the witness denied any connection with the crime.
    2. Criminal law <&wkey;507(l) — “Accomplice” WITNESS DEFINED.
    One is an “accomplice” witness, within Code Cr. Proc. 1911, art. 801, expressly forbidding conviction on the uncorroborated testimony of an accomplice, who is connected with the crime, if he is connected with the offense either as principal, accomplice, or accessory by some unlawful act or omission on his part, transpiring either before, at the time of, or after commission of the offense.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second .Series, Accomplice.]
    Appeal from Lamar County Court; W. L Hutchison, Judge. i
    
    
      S. C. Scales was convicted of receiving and concealing stolen property, and he appeals.
    Reversed.
    Oivnby & Allen, of Paris, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was charged

with the theft of some hay, and in another count with receiving and concealing stolen property. The conviction was on the second count. He was found in possession of several bales of hay, which the evidence showed to have been stolen from -a warehouse near by. He explained his possession of it by stating that he bought it from a negro.

The evidence connecting the appellant with tlie offense is wholly circumstantial, and the exception to the charge, and to the refusal of request that in special charge the jury should be so instructed, were well taken. Reed, one of the state’s witnesses, declared that he had admitted the theft of the property, but that he had done so because the appellant had agreed to pay him for doing it; and claimed on the trial that he, as a matter of fact, had no connection with the offense. His testimony was used against the appellant to show guilty knowledge and to connect him with the offense. Appellant is right in his contention that the court should have instructed the jury in appropriate language to determine whether or not the witness Reed was an accomplice, and, if so, that a conviction could- not be founded upon his testimony in the absence of corroboration. It was shown that he had admitted the theft, and his denial and explanation of it resolved his connection with the offense into a question of fact. Article 801 of the Code of Criminal Procedure expressly forbids the conviction of one accused of crime upon the uncorroborated testimony of an accomplice. The term “accomplice,” as used in this statute, has a meaning broader than that contained in the definition of accomplice in the Penal Code, art. 79. Under article 801, one is an “accomplice” witness who is connected with the offense either as principal, accomplice, or accessory by some unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense. Phillips v. State, 17 Tex. App. 169, and other cases in Vernon’s Texas Crim. Statutes, vol. 2, p. 782. The inculpatory testimony against the witness Reed rendered it necessary that the court on proper request instruct the jury on the law of accomplice testimony, notwithstanding Reed denied any connection with the crime. Kelly v. State, 1 Tex. App. 637, and other cases cited in Branch’s Annotated Texas Penal Code, § 716, subd. 6.

The errors pointed out require a reversal of the judgment, which is ordered. 
      <§=^Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     