Appellant contends that the affirmance was in contravention of the law and the facts, and asks for a *Page 5 rehearing and reversal of the judgment. Without the details, the evidence discloses that a smelting company at El Paso loaded a certain numbered car with copper for interstate shipment; that the car was properly sealed, and started to its place of destination. Having reached a point about twenty-five miles from El Paso, the train was stopped by the conductor on account of a fire in some part of the machinery. He states the fire was not accidental. Where the train was stopped the conductor testified that he saw three or four men near the train, which indicated to him they had gotten off the train. He accosted them and a conversation occurred in English. He did not know them, or whether they were Mexicans or Americans, and was not able to identify any of them, it being at night. They did not go in the train from that point. At another point considerably north of that above indicated it was discovered that the seal of the car had been broken and some of the copper taken or had disappeared from the car. The train left El Paso in the evening about 7 or 8 o'clock. Copper bars were found between El Paso and the line of New Mexico near the railroad track, and it is made reasonably to appear that some of it had been thrown from the train while in motion within eight or ten miles of the city of El Paso. Copper above that point was also picked up by the railroad people. There were indications that something had been thrown from the train which the circumstances indicated might be the missing bars of copper. There were tracks of men found at this place and the inference is they had carried the copper in a vehicle which made a narrow wheel track. The State contends that the next morning at a very early hour appellant told his clerk that he had three bars of copper at one of his warehouses where he lived, and there would be other bars brought to the warehouse, which was controlled by the clerk. Six bars of copper, Cohn says, were brought to him early the same morning by two Mexicans in buggies drawn by jackasses or mules. This copper later was put in barrels to be shipped, and the bill of lading taken in the name of appellant. It would seem, however, that appellant did not but Cohn did attend to this shipment. When the copper was carried to the depot for shipment an investigation was made and the smelting company claimed the copper. It being in the name of appellant, he was sent for, and it is stated he admitted buying the copper. So far as any positive facts may be concerned, it seems appellant was not seen in actual possession of the property. There seems to have been another trial of the case, and while the jury was out on that trial witness Goodwin testified that in conversation between appellant, himself and attorney Hill, appellant admitted he knew the copper was stolen when he bought it, and that it "came off the train." This is denied by appellant and Hill both, and their version of it is entirely at variance in every way with the testimony of Goodwin. The writer deems it unnecessary to enter into a detailed statement of the facts and circumstances.
If appellant made the statement imputed by Goodwin, that he *Page 6 "knew" the property was stolen and that it came "off the train," it would be an extra-judicial verbal confession. It does not prove the theft of the property. Hill v. State, 11 Texas Crim. App., 132. It is an admission, if made, that he knew it was stolen and came "off the train." This can only be regarded as a circumstance. It does not prove the corpus delicti, the theft, or the main fact. Extra-judicial verbal confessions do not prove the corpus delicti. This was held in an able opinion by Judge Hurt in Hill v. State, 11 Texas Crim. App., 132. The theft relied on by the State must be proved, the identity of the property established, and the theft must be shown aliunde such confession. This would not make a case of positive evidence. The authorities may be found collated by Mr. Branch in his valuable work on Criminal Law, page 106. A serious proposition in the case is this: that a charge on circumstantial evidence should have been given. Wherever the facts are circumstantial such charge is necessary, and to relieve the court from giving this charge the evidenre must be positive. This rule, wherever the case is of a compound nature, applies both to the original case and to its derivatives as in homicide the indicted accomplice must have a principal. Such confession of the accomplice does not prove guilt of the principal; nor in a case where we have a principal and accessory, or a principal and a receiver. We are referring to extra-judicial verbal confessions. Such cases may be termed compound offenses, made up of the original and the related subsidiary offense, both of which must be proved. The authorities all seem clear upon this proposition, and are collated by Mr. Branch in the citation above noticed. The correct general statement is that every such case has its main fact to be proved — the factum probandum — in theft, the taking; in murder, the fatal stroke; in forgery, the making of the forged instrument; in burglary, the breaking and entry, etc., and if there is no direct evidence of the main fact, a charge on circumstantial evidence is required. If the main fact is inferred from other facts, the case rests wholly upon circumstantial evidence, in a legal sense. Sec. 202 of Mr. Branch's Crim. Law. Under that citation is collated a great number of cases, rather numerous to be here specified.
Now, in this particular case there is no direct evidence as to the theft. It is one of inference, and the principal is not shown by positive evidence. The circumstances go to show that somebody entered the car by breaking the seal, though whoever did it resealed the car, but not with the same kind of character of seal. Where this occurred is not shown except by inference. It occurred after sealing the car at El Paso and before reaching point of discovery, and possibly before the copper was thrown from the train near El Paso. The train seems to have been in rapid motion from the time it left the depot at El Paso until it reached the point indicated heretofore in this opinion, where the fire was discovered. Just how the parties breaking into the car could have broken the seals, the seals being on the outside of the car, while it was running at about thirty-five miles an hour and then replace *Page 7 the seals, is not explained or sought to be explained. When, where, and by whom the car was resealed is not disclosed, nor sought to be. So it is left as a matter of conjecture as to how, when and where the seals were broken and others substituted. But the testimony is that the car had been sealed in El Paso, and that when it reached a point in New Mexico, something over one hundred miles above El Paso, the seals had been broken and replaced by others, and the copper had been thrown from the train. Who threw it from the train, or how they entered the car, or where or when are but matters of inference. Whether it was the men the conductor says he saw who did it is conjectural. The conductor suspected they did it by reason of seeing them at the place designated, that is, where the train stopped. He did not see them on or get off the train. This is but a circumstance pointing to them as those who may have broken the car. It may or may not have been. It may have been broken by others prior to that time. The parties breaking the seals may have had confederates who later replaced them. Their connection with the burglary of the car is only a matter of inference or deduction. The seals may have been broken at El Paso, and the seals replaced beyond the place of theft. The fire may have been started at El Paso in order to stop the train near by El Paso. These facts clearly raise the question of design and conspiracy planned and executed with well matured preparedness. If defendant was a part of this conspiracy he would be a principal.
Now, recurring, if the defendant made the statement to Goodwin, to which Goodwin testifies, that he bought the property knowing it to have been stolen, it was in the face of defendant's evidence, as well as a positive denial of the statement by himself and Hill, for he testified and introduced testimony to the effect that he bought the copper innocently, not knowing it was stolen; but take the statement of Goodwin for what it is worth, that appellant knew it was stolen and knew it came "offthe train," and the further statement of the accomplice Cohn, that appellant said he was in possession of copper very early the next morning, which the State contends were three of the bars that came out of the particular train, and that he instructed Cohn to receive Copper from other parties, and that Cohn did receive copper a few minutes later from a couple of Mexicans in two buggies, it still would be but a case of circumstantial evidence. This statement, if intended to operate as a confession against appellant, was extra-judicial. He did not identify either the theft or stolen property, or circumstances of the theft, or receiving the property taken. If connected as a taker he would not be a receiver, though he was not present. Kaufman v. State, 70 Tex.Crim. Rep.. There was no identification of the copper as having been taken off of that train by the confession. All those matters had to be shown by circumstances. This would be but a case of possession of recently stolen property, if possession is proved to be in appellant. We have always understood the law to be that where the State relies upon possession of recently stolen property to *Page 8 show guilt, it could be nothing more than a case of circumstantial evidence. Mr. Branch, in the same section above alluded to, thus correctly states the rule: "Proof of recent possession in theft or burglary cases is but a circumstance, and if there is no direct evidence of the taking in a theft case, or of the breaking and entry in a burglary case, the court should charge on circumstantial evidence," and in support of this he cites a great number of cases which can be found collated in the reference made. Now he makes this further note with reference to confession: "To relieve the court from the necessity of charging on circumstantial evidence the confession must be that defendant committed the act for which he is then on trial, or the admission must be unequivocal that defendant did the main fact, and if it is only by a process of inference that it can be determined that there is a confession or admission of the main fact, it is error to fail to charge on circumstantial evidence." A great number of cases are cited in support of this. We might mention Beason v. State, 43 Tex.Crim. Rep.; Crowell v. State, 24 Texas Crim. App., 404; Pace v. State, 41 Tex.Crim. Rep.; Gentry v. State, 41 Tex.Crim. Rep.; Trejo v. State, 45 Tex. Crim. 127; Willard v. State, 26 Texas Crim. App., 126; Conner v. State, 17 Texas Crim. App., 1; Harris v. State, 15 Texas Crim. App., 629. In Early v. State, 50 Tex.Crim. Rep., it was stated, substantially, that though proof shows that defendant was present at the scene of the homicide, but he denies guilty participation, and there is no direct proof that he assisted in its commission, it is error to fail to charge on circumstantial evidence. Was appellant present and participated in the theft? If so, he was not a receiver and could not be. In that case he would be the thief. He could still be a principal under the conspiracy theory if the facts and circumstances so showed. This could be shown by positive or circumstantial evidence. In the latter case the requisite charge must be given.
Take the statement made by appellant at its value, the conclusion that appellant was or was not present at the time of the taking, or that he received the property knowing it came from the train sought to be shown by the State to have been burglarized, would constitute but a case of circumstantial evidence. The guilt of the accused would then have to be inferred from these and other circumstances. This is not direct or positive evidence on either issue. If we take his statement, that he knew the property was stolen and "came off the train" as true, it does not specify what train. This is a matter of inference from other circumstances. It is as strong evidence also that he may have been one of the four men mentioned by the conductor. It is as strong that he was a conspirator and so received the property in pursuance to the conspiracy as that he was a receiver without previous conspiracy. If a conspirator, not present at burglary or theft, but was to receive the stolen property under the conspiracy, he would be a principal, and his absence would not relieve from being such principal. Kaufman v. State,70 Tex. Crim. 438. The State shows, under the evidence *Page 9 of the accomplice, that early the next morning appellant told him he had received some copper, and later the same morning received through Cohn other bars of copper, and to Goodwin he states he was aware the copper was stolen. This does not prove the corpus delicti; it does not show positively the identity of the property. It was necessary to show all this by such circumstances as the State could produce. From the beginning of the case to its end the State sought to connect defendant with receiving the property by circumstances. The whole case was one of circumstances. In the Beason case, 43 Tex.Crim. Rep., the question came in somewhat similar form, except the confession was judicial and not extra-judicial. A house had been burglarized, and Beason and another party were arrested charged with the burglary and theft. The theft being a misdemeanor, was tried in the county court. Defendant plead guilty in the county court to the theft of the property. The trial court submitted the burglary to the jury upon the theory that it was a case of positive evidence by reason of the confession. This court, in the first opinion, reversed because a charge on circumstantial evidence was not given, and on the second appeal, in rather an elaborate and well considered opinion written by Judge Brooks, the rule was followed. A great number of cases might be cited in support of this proposition, and so far as the writer is aware it has not been varied or modified. If appellant had been charged with the theft of the property from the train, the circumstances would have been just as strong against him as for the receiving. The State relied upon possession of recently stolen property to show its reception. It had to prove the principal offense circumstantially, and by circumstantial evidence to connect him with knowledge of its being stolen. Had he been tried for theft of the property from the train, the possession would have been recent, whether explained or unexplained. This would make no difference from that point, because in either case it would have been a case of circumstantial evidence, and if the State is correct in its theory that he was in possession of the property early the next morning, by 7 or 8 o'clock, and the property had been hauled eight or ten miles and brought to his warehouse at that early hour after being thrown from the train the previous night, it was but possession of recently stolen property if it had been identified as property coming from the train. Who brought the copper to defendant, or did he bring it? The Mexicans brought that to Cohn. The rule seems clear that where there is a compound offense, theft and receiving stolen property, and conviction is sought for receiving stolen property, the theft must be proved with the same cogency as would the guilt of the defendant for receiving the stolen property. If he was not present but was a conspirator to the transaction and was to receive the stolen property, he would be a principal — not a receiver. Kaufman v. State, 70 Tex.Crim. Rep.. Appellant could not be the receiver of stolen property without knowledge of the fact that theft of it had been committed. It is true this could be shown by circumstantial evidence as well as by *Page 10 positive, but where circumstances are relied upon, a charge on circumstantial evidence is necessary, and this would be so if either the receiving stolen property, or the theft side of the case is shown by circumstantial evidence. This seems to be the well settled rule with reference to all compound offenses. It is also settled that where the party is charged with being an accessory, the guilt of the principal must be proved, and this with about the same cogency of testimony as requisite to convict the principal were he on trial. So where a party is charged with being an accomplice, the guilt of the principal must be shown in order to connect the accomplice with the offense, because there could be no accomplice without a principal. In other words, that in order to show the guilt of the accessory, the receiver of stolen property or the accomplice, both offenses, the original and its subsidiary offense, must be shown in order to convict. In a case of this character there must be shown to be a theft first, and, second, that the accused did receive or conceal the alleged stolen property as charged in the indictment, and, third, that he knew it was stolen at the time he received it. A failure to prove either of these necessary ingredients would cause the State to fail in making out its case. If either the theft or the receiving of stolen property is shown only by circumstances, it is a case of circumstantial evidence, and such charge should be given. If he was a principal, as under the Kaufman case, he would not be a receiver.
This case, under the facts as shown in this record, is one of circumstantial evidence, and the court was in error in not so charging the jury.
There are other interesting questions in the case which the writer believes ought to reverse it, but they are not discussed.
The motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed and the cause remanded.
Reversed and remanded.