
    SAMARAS v. STATE.
    (No. 7022.)
    (Court of Criminal Appeals of Texas.
    April 25, 1923.)
    1. Criminal law <&wkey;780(2)— Refusal to instruct on Jaw of accomplice error.
    In a prosecution under an indictment charging both theft and receiving stolen property,, where the state’s case rested in the main upon the testimony of two witnesses, both of whom were shown to have been consciously in possession' of the stolen property, it was error for the court to refuse to instruct the jury upon the law of accomplice testimony as based in Code Gr. Proc. 1911, art. 801.
    2. Criminal law <&wkey;742(¿) — Whether witness in possession of stolen property was feigned accomplice acting for detection- of the real criminals held for jury.
    ■In a prosecution under an indictment charging theft and receiving stolen property, where one of the state’s principal witnesses was admittedly in possession of the stolen property, he was prima facie an accomplice witness, and, though he claimed to have been merely a feigned accomplice with a view -to the detection of the real criminals under an arrangement with the arresting officer, it was for the jury to determine whether he was an actual or feigned accomplice.
    3. Criminal law <&wkey;798'/2 — 1Under indictment charging separate felonies, verdict of guilty should designate count.
    In a prosecution under an indictment charging both theft and receiving stolen property, where both counts are submitted to the jury, an instruction should be given that, in the event of a verdict of guilty, the jury should determine upon which count it is rendered; the separate offenses being of the grade of a felony.
    4. Criminal law <&wkey;II75 — Failure of general verdict to designate count under indictment charging two offenses not reversible error where lowest penalty assessed.
    In a prosecution under an indictment charging the theft and the receiving of stolen property, the failure of a general verdict of guilty to determine upon which count it was rendered was not reversible error where there was* evidence supporting each count, and the penalty assessed was the lowest allowed by- la.w',fo.r -either offense. •
    Appeal from Criminal District Court, .Tar-rant County; George E. Hosey, Judge. .
    John Samaras was convicted of theft, -and he appeals.
    Reversed and remanded.
    Baskin, Eastus & Greines, of Eort Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., of1 Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

The place of business of the witness -Reed-er was entered, and a number of automobile casings, some cord, and some fabric were stolen. Thirteen, of (these (casings were recovered by Officers Lewis and . Salsberg, and returned to Reeder. The witness Den-man testified that he had arranged with the appellant to purchase from him soma .cord tires, and at nighttime he and the witness Hudgins went with appellant to a ¡certain point near a levee, from which point the appellant went in an automobile belonging to the witnesses mentioned, and returned with the casings. He first brought some fabric casings, which the witness refused to purchase. Appellant again • went to the point where the casings were hidden under some brush, and returned with five ■ cord casings, which Denman purchased, giving appellant his check for $60. Denman knew that the casings were worth more, and said that he also knew that they were stolen, but claimed that he was purchasing them by prearrangement with the officer Lewis.

The state witness Lewis testified that he had had no previous conversation or -prearrangement with Denman, and also testified that Officer Salsberg arrested Denman and Hudgins and brought them to the city hall. After the arrest Lewis talked to Den-man, and then went to the levee and found other tires, which had been covered up with brush. Hudgins’ testimony is much like that of Denman. Both Denman and Hudgins were dealers in tires, and both knew that these were hidden in an unusual place, delivered at night, and sold for an inadequate price. '

Appellant in a timely and appropriate manner requested the trial court to instruct the jury upon the law of accomplice testimony as embraced in our statute, article 801, •Code of Grim. Procedure. In the refusal to grant this request, the court not having touched upon the subject in his main charge, we think there was prejudicial error.

The state’s case rested in the main upon the testimony of Denman and Hudgins. Both of them by their testimony and by the testimony of the state, witness Lewis were shown to have been consciously in possession of the stolen property. Nothing in the record is perceived by us to exempt Hudgins from the rule requiring a charge on accomplice testimony, and nothing in Denman’s case can be relied on for that purpose except his declaration upon the witness stand that he purchased the' stolen property by prearrangement with officer Lewis, ‘ which is in conflict with the testimony of Lewis. Denman, having received the stolen property knowing of its theft, was prima facie an accomplice witness. His testimony was subject to the general rule thus stated in 16 Corpus Juris, § 1370:

“Where the complicity of the witness is admitted, but the prosecution claims that he was merely a feigned accomplice acting with a view, to the detection of the real criminals, it is for the jury to determine whether the witness was an actual or only a feigned accomplice.”

See Smith v. State, 89 Tex. Cr. R. 146, 229 S. W. 523.

Salsberg was not used as a witness for the state, and, under the evidence before the trial judge, he was not warranted in refusing to instruct the jury to determine whether the witnesses Denman and Hudgins were accomplice witnesses, and whether there was corroboration such as is demanded by law to connect the appellant with the commission of the offense.

We also take note of the fact that the court submitted to the jury each of the counts in the indictment, namely, that of theft of the property, and of the fraudulent receipt of it, knowing it to have been stolen. There was a general verdict of guilty. If there be another trial, and both. counts be submitted to the jury, the charge should embrace an instruction that, in the event of a verdict of guilty, the jury should determine upon which count it is rendered. The theft and receiving of stolen property were separate offenses of a felony grade. There being evidence supporting both counts, the jury should be called upon to designate upon which count they find the accused guilty.

The penalty assessed being the lowest allowed by law for either offense, and there being evidence supporting each of them, the failure to follow the approved practice would not be reversible error. Rozier v. State, 90 Tex. Cr. R. 337, 234 S. W. 666; Banks v. State (Tex. Cr. App.) 246 S. W. 377.

Because of the error in failing to submit the law of accomplice testimony, the judgment is reversed, and the cause remanded. 
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