The indictment charged appellant with theft of an automobile. Tiller, the accomplice, testified substantially that he and appellant stole an automobile in Waco and carried it to Carthage in Panola County and disposed of it. More specifically, Tiller testified when they reached Carthage with the *Page 574 automobile they went to a hotel, it being about the middle of the night, and the next day or so he disposed of the car; that appellant was not present and did not participate in the sale, that when the sale was consummated he conferred with appellant and appellant agreed to and sanctioned the sale, that the purchaser was not aware appellant had anything to do with the transaction. That he, Tiller, had appellant to write a bill of sale to the car to the purchaser but appellant did not sign his true name. It is sufficiently shown that appellant was in Carthage at the time these matters occurred. Tiller testified further that appellant wrote and signed a bill of sale, and they finally returned to Waco. The alleged owner of the car testified that it was stolen from the streets of Waco, and seven months afterward he went to Carthage and identified a car as being the one stolen from him. It was in the possession of the doctor to whom Tiller says he sold it. The bill of sale was secured in some way and introduced in evidence. The alleged purchaser was not a witness in the case. This bill of sale was introduced before the jury, and appellant's known signature to an application for continuance, and also one to motion for severance was introduced. We suppose this was for the purpose of comparison of handwriting. There was no evidence from the jury or any other source in regard to the similarity of handwriting between the bill of sale introduced in evidence and the signature of appellant shown to be genuine on the two motions above specified.
One of appellant's contentions is that the evidence is not sufficient to corroborate the accomplice. The general proposition is correctly stated that where the accomplice testifies to positive facts with reference to a criminal act for which conviction is sought, evidence tending to connect the defendant would justify the jury in arriving at a conclusion as to the sufficiency of the evidence. The evidence may be regarded as sufficient to show that appellant was in Carthage at the time of the sale of the car, and from the circumstances the jury might infer that he went with Tiller from Waco to Carthage in the car. It is more than questionable that Tiller was corroborated as to the fact that appellant was in or left Waco with Tiller. There is no evidence, as we understand the record, that corroborates the accomplice that appellant wrote the bill of sale. There is some corroboration of Tiller as to the fact that the car found in possession of the doctor seven months after the sale was the car that Tiller says he sold to the doctor and which he says appellant assisted him in selling. The doctor was not brought as a witness to identify this car as the one he bought at that time. Seven months afterward McBride, the alleged owner, found his missing car in possession of this doctor at Carthage, but the evidence is not sufficient to show that this was the car mentioned in the bill of sale, or that appellant wrote the bill of sale independent of the accomplice testimony. The identification seven months after the *Page 575 theft that this was the particular car we think is hardly sufficient. The State could have produced the doctor who brought the car to show that the car that he bought from Tiller. There is no reason given why he was not brought, and if we omit the testimony of the accomplice there is nothing to show that this particular car was the car sold to this doctor before the alleged owner identified it. The State could have attempted to prove similarity of handwriting as to whether the name of appellant signed to the bill of sale, if he did sign it, was in the same handwriting as that recognized to be genuine in his signature to the motion for continuance and motion to sever in other cases. This case has not been satisfactorily proved, and we are of opinion that under the statement above the evidence is too weak, incoherent and indefinite to sustain this conviction, and there is no reason given why the State did not use the doctor's testimony in connecting up these matters if they could have so proved by him. They could have shown by the doctor whether or not this was the particular car he bought about which Tiller testified. The doctor could have bought this car subsequently and appellant not be connected with it. If this was not the car sold at the time to the doctor, known as the McBride car, then the evidence is not sufficient, and there is a want of connection in the testimony that, legally speaking, renders the testimony insufficient. In our opinion this judgment ought not to be affirmed, and it is, therefore, reversed and the cause remanded.
PRENDERGAST, JUDGE, dissenting.
Reversed and remanded.
ON REHEARING. January 29, 1919.