Appellant was convicted of the offense of theft of property over the value of fifty dollars, and his punishment was assessed at confinement in the state penitentiary for a term of three years.
Appellant challenges the sufficiency of the testimony to support his conviction on the theory that the law will not permit a conviction of one accused of crime upon the testimony of an accomplice unless the same is corroborated and such corroboration must in and of itself tend to connect the accused with the crime which he is charged with having committed. Recognizing the soundness of the proposition advanced we deem it necessary to review the salient facts and circumstances proven at the trial to determine whether or not the accomplice, who made a complete case of theft against the appellant, has been sufficiently corroborated. On the night of June 4th, three bales of cotton were taken from the yard of the Farmers Gin Company in the town of Rotan and carried in appellant's truck to the town of Snyder where the accomplice offered them for sale, when he was arrested. About the time the officers undertook to arrest Guerin, the accomplice, they noticed a stranger standing on the street near the bank who in appearance resembled the appellant and who the officers testified in their best judgment was the appellant. After they had arrested the accomplice one of the officers took charge of the truck while the other placed Guerin in jail. Thereafter they began to look for the stranger who they had seen on the street, but he had disappeared. About the time the alleged offense was committed appellant was away from home and the community in which he lived for several days. Appellant subsequently transferred the truck which the officers had taken possession of to Billie Lee of Snyder, Texas. Three persons, who were employed by the State Highway Department and were at work on the highway, testified that they saw appellant and accomplice riding in appellant's truck on the 4th day of June going in the direction of Rotan. We think that the accomplice was sufficiently corroborated by the facts and circumstances proven as hereinabove stated.
Appellant's next contention is that the court erred in not instructing the jury that if they found from the evidence or had a reasonable doubt thereof that C. C. Roach had the actual control, *Page 236 care, and management of the cotton described in the indictment, then to acquit the defendant. The court failed to heed the objection and failed to submit such an instruction to the jury. We think that in this respect the trial court fell into error. The indictment in the first count thereof charged that the defendant on or about the 5th day of June, 1936, and anterior to the presentment of the indictment in the County of Fisher and State, aforesaid, did unlawfully and fraudulently take three bales of lint cotton of the value of one hundred and fifty dollars, the same then and there being the corporeal personal property of and belonging to Arthur Singley, from the possession of Arthur Singley, without the consent of Arthur Singley, etc. In the second count it was charged that Lee Howell did then and there unlawfully and fraudulently take three bales of lint cotton of the value of one hundred and fifty dollars, the same then and there being the corporeal personal property of and belonging to C. C. Roach, from the possession of said C. C. Roach, etc. Mr. Singley testified: "On or about the 5th day of June, 1936, I had some cotton stored at Rotan. It was in the yard of the public weigher. * * * I lost those three bales of cotton. It was later found at Snyder, Texas. Mr. Roach handled the weights and sale of the cotton. As to whether the cotton was in his care and custody, I do not know how it was handled in the Yard of the Public Weigher's. Mr. Roach is the manager of the gin there; that is the Rotan Gin. That is a farmer-owned gin. He had authority to sell it for me."
C. C. Roach testified: "I am manager of the Rotan Gin Company. That is the farmer gin at Rotan. On the 5th day of June, 1936, I had in my care and custody and control, three bales of cotton belonging to Arthur Singley. The way that cotton came into my care and custody, it had been ginned at our gin. I marked those three bales of cotton. I had authority from Mr. Singley to do that. I sold that cotton for nine cents or a little over after they were recovered at Snyder, Texas. I did not give the defendant or anyone else my consent or permission to take that cotton away from that yard."
The court submitted the case to the jury on the first count in the indictment which charged the ownership and possession of the property at the time it was taken to be in Arthur Singley and instructed the jury as to such ownership and possession alone. Appellant's contention is that the evidence shows the ownership in Singley and the care, control, and management of the property at the time it was taken to be in C. C. Roach, and, *Page 237 therefore, the court should have submitted this issue to the jury. We are constrained to agree with him. The allegation of possession of the alleged stolen property, being descriptive and essential, must be proved as charged and where the testimony raises an issue as to the ownership of the alleged stolen property the court should instruct the jury on the law of such issue. See White v. State, 33 Tex.Crim. Rep.; Tankersley v. State, 51 Tex.Crim. Rep.; Bailey v. State, 50 Tex.Crim. Rep., and many other cases might be cited.
The testimony as to when Singley authorized Roach to sell the cotton, whether before or after it was stolen, is rather uncertain and might be definitely shown upon another trial.
For the error hereinabove discussed the judgment of the trial court is reversed and the cause remanded.
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.
ON STATE'S MOTION FOR REHEARING.