
    Robert SMITH v. STATE.
    No. 17675.
    Court of Criminal Appeals of Texas.
    June 19, 1935.
    Rehearing Denied Oct. 23, 1935.
    D. E. O’Fiel, of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, Judge.

Conviction for theft; punishment, two years in the penitentiary.

Appellant was charged with theft of a meat-chopping machine of the value of something in excess of $100. He did not testify, nor did he introduce any evidence in his behalf. The state’s testimony is sufficient to show the theft of the box containing the meat-chopping machine and its attempted sale to Mr. Módica by the appellant, who left the box containing the machine at Mr. Modica’s place of business, where it was recovered by the owner. The evidence seems to justify the conclusion of the jury.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, Presiding Judge.

The prosecuting witness Arterberry testified to the loss of a meat chopper of the value of $110. John Módica, a merchant, testified that the meat chopper was left in his store by the appellant. A detective later took the meat chopper from Modica’s place of business. As the -record is understood, Módica made no claim to the machine. He testified that appellant sought to use the meat chopper in payment for some groceries.

The motion for rehearing is based upon the contention that the witness Módica was an accomplice as a matter of law. That contention, it is thought, was properly rejected. The court, however, gave an adequate charge, leaving to the jury the question as to whether Módica was an accomplice or an accomplice witness.

Upon the record before us, we are constrained to overrule the motion for rehearing, which is accordingly ordered.  