Kosel v. State

Appellant insists that the trial court was in error wherein it failed to charge that not only should the testimony of the accomplice be corroborated as to the theft of the alleged stolen property, but that such accomplice's testimony should be corroborated as to the appellant receiving and concealing same, knowing same to have been stolen. The portion of the charge quoted in the original opinion was immediately preceded by the following excerpt, after stating that the witness Ellis was an accomplice:

"You are instructed in this connection that you cannot convict the defendant upon his (the accomplice's) testimony unless you first believe that his testimony is true and shows beyond a reasonable doubt that the defendant is guilty of the offense charged in the indictment, and even then you cannot convict the defendant upon his testimony unless you further believe that there is other evidence in the case outside of, other than and independent of the said accomplice witness Elmer (Preacher) Ellis and corroborative thereof, tending in some material matter to connect the defendant with the offense committed, if any," the remaining portion of such paragraph being that quoted in the original opinion.

We think that such paragraph meant that not only must the fact of theft, as testified to by the accomplice, be corroborated, but also the fact of guilty knowledge upon appellant's part at the time he received and concealed such property should receive corroboration.

The motion will be overruled. *Page 583