
    GUSEMANO v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.)
    1. Burglary (§ 46) — Instructions—Possession of Property.
    In a prosecution for burglary, where defendant, explaining his possession of the goods, said that he had purchased them, an instruction that such possession must he consistent with his innocence was erroneous, since he could have been innocent of burglary had he bought the goods knowing them to have been stolen.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    2. Witnesses (§ 414) — Corroboration of Accomplice — Statements Consistent with Testimony.
    Where it is sought to show that an accomplice, testifying for the state, was testifying from corrupt motives, he can be corroborated by showing ■ that before the motive existed he had made the same statement.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1287, 1288; Dec. Dig. § 414.]
    3. Witnesses (§ 410) — Impeachment—Corroboration.
    A showing that a case against an accomplice, testifying as a witness for the state, had been dismissed is an attempt to impeach the witness by showing a corrupt motive, so that the state may introduce corroborative evidence.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1284; Dec. Dig. § 410.]
    Davidson, P. J., dissenting in part.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Joe Gusemano was convicted of burglary of a railroad car, and he appeals.
    Réversed and remanded.
    B. T. Branch, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of the burglary of a railroad car. There was evidence of the fact that the car was broken and goods taken from it. The state introduced a negro named Parker, who made himself an accomplice — that is a principal— in the transaction of breaking the car and taking the goods. Under his testimony the state would have a ease; but, being an accomplice and used as a witness, it was necessary that he be corroborated, as required by the statute. As a means of corroboration of the negro, the state used an officer as a witness, who testified, in substance, that appellant returned some of the property to him. Either at the time when appellant was first questioned about the goods, or when he delivered them, or, perhaps, on both occasions, he stated that he had purchased the goods from five negroes. The witness Parker had testified that five negroes, including himself, and the defendant, who is not a negro,, had committed the burglary; appellant furnishing the wagon. Appellant also proved an alibi on the night of the burglary. Without going into a detailed statement of the. facts, this, we think, is sufficient to bring in review the questions presented.

1. Parker, on redirect examination, testified that he had made substantially the same statement before the justice of the peace or magistrate, about two weeks after the burglary, that he made on the trial before the jury. The details are unnecessary. Objection was urged to this testimony and various grounds presented. This testimony was not admissible. We suppose the court admitted it upon one of two, or perhaps both, grounds: First, that it was corroborative of the accomplice’s testimony given before the jury; and, second, that he had been impeached, or sought to be impeached. Neither ground justified the admission of this testimony. Parlier stated that he had made practically the same statement with reference to the transaction before the magistrate about two weeks after the alleged burglary. He was not sought to be impeached. It was developed from him while he was testifying that the state would dismiss, or had dismissed, one of the cases against him. The court’s ruling seems to be predicated upon the theory that that was impeaching the witness. We do not so understand the law. If it was sought to corroborate the accomplice by a repetition of his statement made at some other time, that cannot be done. An accomplice eannnot corroborate himself. It is immaterial how many statements he may make. Without going into a discussion further of this matter, we refer to Pridemore v. State, 53 Tex. Cr. R. 623, 111 S. W. 155, Saye v. State, 54 Tex. Cr. R. 431, 114 S. W. 804, Reese v. State, 43 Tex. Cr. R. 541, 67 S. W. 325, and Morton v. State, 71 S. W. 281. We deem it unnecessary to pursue this line of thought further. To show a dismissal of the case against Parker was not impeaching his testimony.

2. Complaint is made of the court in charging upon the subject of reasonable explanation and possession of property, because the state had proved the explanation and was bound by it, unless it was shown to be untrue, and the explanation being proved by the state was a different question from the explanation put in evidence by the defendant, and; because the reasonableness of the explanation was not a question for the jury, having been proved by the state, and because the court also required the jury to find that the explanation was “consistent with his innocence.” The court tried this case upon the theory that appellant’s explanation of his possession of the property, to wit, that he bought it, was consistent with his innocence. This question came up in Cagle v. State, 52 Tex. Cr. R. 307, 106 S. W. 356, and was held adversely to the court’s ruling. Applied to the facts of this case, the charge on explanation of possession of stolen property did not present the question as it should be presented, and, in fact, it may be stated that the charge, as given, was detrimental to appellant. The charge with reference to reasonable explanation of the possession of property is based upon the theory that he came by the property innocently. That may not have been the case under this record. Appellant is charged with burglary, and not with theft. The state put in evidence the fact of his possession, accompanied by his statement to the effect that he purchased the property. If appellant purchased the property, he would not be guilty of burglary. The property may not have been innocently in his possession. He could have bought the property Knowing it to have been stolen and yet be entirely innocent of burglary. Of course, if he bought the property, whether he bought it innocently or knowing it to have been stolen, this might be used as a circumstance for what it was worth; but if he bought it knowing it to have been stolen he would not have been innocent in his possession. It would still have been a guilty possession, if he knew it was stolen when he made the purchase. To meet this appellant requested some special charges; not only so, but criticised the court’s charge in the motion for new trial. These special requested instructions were refused. The effect of these charges was to place this matter more correctly before the jury; that is, if the defendant bought the property, even if he knew it was stolen, yet, before they could convict him of burglary, they must find that he was present or doing something in connection with the burglary which made him a principal. His acquittal of the burglary would not depend upon his innocence as to the possession of the stolen property, but would depend upon the fact that he participated in breaking the car as a principal. He may have known the property was stolen and yet not be guilty of burglary. He could be guilty as a receiver of the property if, when he received it, he knew it to be stolen, whether it came from the broken car or not. The charge was not such as ought to have been given, and it was erroneous, under the facts of this case.

There are some other interesting questions presented for revision, but we are of the opinion the trial court will understand from what has been said the other questions will follow the line of thought here indicated.

The judgment is reversed and the cause remanded.

PRENDERGAST and HARPER, JJ.

We concur in the reversal of the case, but not in the first proposition -herein’ discussed. Mr. Branch in his Criminal Law, § 875, correctly we think lays down the rule to be that if it is sought to be shown that the witness testified from corrupt motives, then he can be sustained by showing that before the motive existed, he had made the same statement. In this case, it being sought to be shown that the witness had testified under an agreement that he would not be prosecuted for the offense, this would be an effort to show a corrupt motive, and rendered admissible supporting testimony. Wharton, Crim. Law, § 492, and cases cited in note 3; English v. State, 34 Tex. Cr. R. 200, 30 S. W. 233; Reddick v. State, 35 Tex. Cr. R. 469, 34 S. W. 274, 60 Am. St. Rep. 56; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456; Williams v. State, 24 Tex. App. 665, 7 S. W. 333; Jones v. State, 38 Tex. Cr. R. 103, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719; Keith v. State, 44 S. W. 849; Ballow v. State, 42 Tex. Cr. R. 266, 58 S. W. 1023; Jones v. State, 38 Tex. Cr. R. 119, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719.  