Appellant insists that the facts are insufficient to warrant either the trial court's or the jury's conclusion that a conspiracy existed between Fletcher, Danley, and himself, so as to authorize the introduction in evidence against him of the acts and declarations of Fletcher and Danley, made out of his presence and hearing, upon the theory that a conspiracy existed between them.
A conspiracy is deemed to be shown when there is some evidence of participation or interest in the commission of the crime apart from the testimony of the alleged conspirators; also that the mere identification of the defendant and another as joint participants is sufficient evidence of the conspiracy. 18 Tex. Jur., p. 213, sec. 122.
Viewing the facts here presented in the light of these rules, we note that, outside of and other than the acts and declaration of Fletcher or Danley, appellant was shown to be an active participant in the unlawful enterprise by being the man who assigned the lease and received the check in payment thereof from the injured party, and thereafter participated in the proceeds derived from the check.
We have no difficulty, then, in reaching the conclusion that *Page 198 such facts are sufficient to authorize the jury to conclude that the appellant was an active participant and was acting jointly with Fletcher and Danley in their common design to steal the check and that a conspiracy was shown to exist between said parties.
Appellant argues with much vigor that a conviction of theft by false pretext cannot be sustained under an indictment charging theft by fraudulent taking or ordinary theft.
To agree with this contention would be to overrule a long line of authorities in this State announcing a contrary rule, such as: Hawkins v. State, 58 Tex.Crim. R., 126 S.W. 268; McWhorter v. State, 125 Tex.Crim. R., 65 S.W.2d 1101; Riggs v. State, 125 Tex.Crim. R., 70 S.W.2d 164; McCuistion v. State, 143 Tex.Crim. R., 158 S.W.2d 527; McClain v. State, 143 Tex.Crim. R., 158 S.W.2d 796.
We are unwilling to overrule these cases.
At appellant's insistence, the facts as a whole have been again reviewed and we remain convinced that they are sufficient to authorize the jury's conclusion of guilt.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.