Appellant was convicted of the theft of property over the value of $50, and his punishment assessed at confinement in the penitentiary for a term of seven years; hence this appeal.
The court did not err in refusing to quash the indictment. The indictment was in two counts, one of which charged theft from the person, and the other theft of property over the value of $50. While they were different offenses, yet it was competent to charge them in distinct counts in the same indictment. Greenwood v. State, 44 S.W. Rep., 177.
We do not believe it was error for the court to refuse to submit to the jury the question as to whether Ed Holton was an accomplice. In our opinion, the testimony does not put him in that attitude. The court's charge as to accomplice testimony as applied to Jennie Fuller was not subject to the criticism of appellant's counsel. It was a proper charge.
The court submitted the question of a misdemeanor to the jury; and bsides the court gave the requested charge of appellant on the subject, and under the evidence we believe the jury very properly found that appellant was guilty of a felony; that is, that he took more than $50 from the prosecutor Moore at one time. The only witness who speaks on this subject is Jennie Fuller. Other evidence shows that prosecutor must have gone into her house with $85 in currency. When prosecutor came out of the house he only had $5 in currency. She testifies to three occasions in which money was taken from the prosecutor by appellant. In the first she shows that $30 in bills were taken by appellant from prosecutor, and that he handed back to prosecutor a $20 bill. This left prosecutor with $75. She speaks of one other occasion in which bills were taken by appellant from prosecutor, but she was not definite as to the amount. She testifies to the last occasion in which only $5 was taken, but this $5 was handed back by appellant to prosecutor. This evidently left $70 or about that amount, certainly over $50, that must have been taken by appellant from prosecutor at one time. In our opinion the testimony is ample. The charge of the court was sufficient. The judgment is affirmed. Affirmed. *Page 28
ON REHEARING. November 30, 1904.