
    HARRELL v. STATE.
    (No. 10730.)
    Court of Criminal Appeals of Texas.
    May 4, 1927.
    1. Criminal law <&wkey;>507(2) — Witness who assisted in conceaiing stolen mule held “accomplice,” requiring ¡corroboration (Code Cr. Proc. 1925, art. 718).
    In prosecution for fraudulently receiving and concealing stolen property, a mule, witness who aided in concealing the crime held an “accomplice” within Code Cr. Proc. 1925, art. 718, requiring corroboration of accomplice’s testimony.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    2. Criminal law t&wkey;l 173(2) — it is not necessarily reversible error in every case to fail to instruct that witness is accomplice (Code Cr. Proc. 1925; art. 718).
    It is not in every case necessarily reversible error to fail to instruct jury that, as matter of law, witness is an accomplice within Code Cr. Proc. 1925, art. 718, requiring corroboration of accomplice’s testimony.
    3. Criminal law <&wkey;>l 173(2) — Failure to charge that witness was accomplice, and leaving question to jury, held reversible error, where accomplice’s testimony was essentia! to conviction.
    In prosecution for receiving and concealing stolen property, in which testimony of wit- . Hess who was an accomplice was essential to conviction, failure to charge, on accused’s request, that witness was an accomplice, and merely submitting to jury question whether he was an accomplice, held to require reversal.
    Appeal from District Court, Lynn County; Gordon B. McGuire, Judge.
    Frank Harrell was convicted of fraudulently receiving and concealing stolen property, and he appeals.
    Reversed.
    Franklin D. Brown, of Lubbock, Marvin B. Simpson, of Fort Worth, Lockhart & Gar-rard, of Lub.bock, P. B. Ward, of Cleburne, and T. H. McGregor and A. L. Love, both of Austin, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. .Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is fraudulently receiving and concealing stolen property ; punishment fixed at confinement in the penitentiary for a period of two years.

According to the testimony of Lonnie Williams, he missed á bay mule from his pasture. He later found it in Frank Harrell’s lot. The witness had been informed that his mule was in Harrell’s possession, and went to Harrell’s home, pretending that he desired to purchase a mule. Harrell exhibited five mules, among which was the mule which Williams had lost. Harrell fixed the price upon that mule and. another, offering to sell them. The mule’s mane and tail had been sheared and its appearance changed since the witness had last seen it. Richard Johnson, a youth about 18 years of age, had, together with Roy Harrell, a brother of the appellant, been employees of a' man named Millwee, whose pasture was about a mile from the home of Williams. The witness had seen in Williams’ pasture, among others, the mule in question. Roy Harrell afterwards had possession of the mule, and requested the witness to take it to the home of his brother, Frank Harrell. The witness observed that the mule was branded, and asked Roy Harrell what he would pay to have the mule taken to the home of his brother, and Roy replied that he would break the witness’ neck if he did not do it. The witness and two others took the mule a distance of six! miles to Frank I-Iarrell’s place. The witness disclaimed knowledge of the names of the boys who assisted him. When the mule was put on Frank Harrell’s premises, the appellant was there. On the same day Roy Harrell told the witness that he had bought the mule. Some 2 weeks later, the witness, at the request of Roy Harrell, went to the home of Frank Harrell, where he saw the mule in the pasture of the latter, and assisted in shearing the mule. This was done by Roy Harrell, Frank Harrell, and the witness. After shearing the mule, Roy Harrell remarked that, if the owner were to see the mule, he would not know it. This remark was made in the presence of the appellant.. The witness received no pay for his services. Roy Harrell had told the witness not to tell where the mule was, and, when inquiry was made of him hy the witness Millwee, the witness Johnson complied with the request of Roy Harrell, and said that he did not know of the whereabouts of the mule, when, as a matter of fact, he did know where it was.

Millwee testified that the mule was in his pasture some 2 or 3 months. The witness was in Lubbock, and knew nothing of the disappearance of the mule, but learned of its loss from Lonnie Williams. The witness knew that the mule belonged to Williams, and told him that it was in the pasture’of the witness. The witness had also told Roy Harrell and Johnson, the negro boy, that the mule belonged to Lonnie Williams. The witness did not know that the mule was missing until Williams came for it.

We have failed to discern any cogent fact or circumstance upon which the jury might have determined that the witness Richard Johnson was not an accomplice. His testimony, as well as that of others, connects him so intimately with the criminal act as to fender it imperative that, before a conviction upon his testimony could stand, there must be other evidence complying with the requirements of the statute (article 718, C. C. P. 1925), inhibiting the conviction of one accused of a felony upon the uncorroborated testimony of an accomplice witness. See Chandler v. State, 89 Tex. Cr. R. 308, 232 S. W. 336; Harper v. State, 92 Tex. Cr. R. 657, 245 S. W. 79; Howard v. State, 92 Tex. Cr. R. 221, 242 S. W. 739; Meyer v. State, 104 Tex. Cr. R. 6, 282 S. W. 233. It is not in every ease necessarily reversible error to fail to instruct the jury that, as a matter of law, the witness is an accomplice. However, when the evidence shows without controversy that the witness is an accomplice, it is frequently reversible error to fail to so inform the jury. See Armstrong v. State, 33 Tex. Cr. R. 423, 26 S. W. 829, and other cases collated in Branch’s Ann. Tex. P. C. § 712.

It is believed that the present case is one coming under a more strict application of the rule. The testimony of Johnsoq was essential to the conviction. That, if the offense was committed, he was a particeps criminis, is conclusively shown. Under a charge properly instructing the jury that Johnson was an accomplice, they might have decided that there was no cogent corroborating evidence tending to connect the appellant with the commission of the offense. The trial court, in its charge, submitted to the jury the question whether Johnson was an accomplice, and failed to amend its charge in response to the appellant’s suggestion that the court should instruct the jury that Johnson was an accomplice. J

From what has been said, it follows that, in our opinion, in failing to amend its charge, the court fell into error requiring a reversal of the judgment. .It is so ordered. 
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