Appellant was convicted for receiving and concealing stolen property, his punishment being assessed at five years in the penitentiary.
The State's case, made by a co-conspirator, is that he, appellant and appellant's partner Woods entered into an agreement by which the coconspirator agreed to steal automobiles, conceal their identity as *Page 594 much as possible by changing the various numbers on the autos, transfer these from one auto to another so as to cover up their identity, bring them to appellant and his partner who were to buy at a price below their real value, and appellant was to sell them making the difference between what he paid the coconspirator and what he would realize. The State proved this by the witness Pyne and such corroborating facts as could be obtained. It is not the purpose of this opinion to discuss the value of the testimony or its sufficiency as to the corroboration. The coconspirator Pyne, in pursuance to this agreement, testified that he stole the car in question from Barnes and cars from other people, and that he delivered these to defendant and received money for them as they were delivered, and it is shown that appellant afterwards sold the cars for a greatly enhanced price. In other words, Pyne and appellant entered into a conspiracy by which Pyne was to steal autos, deliver them to appellant and his associates on a financial basis, so that each would realize considerable money.
The indictment contains counts charging theft by appellant; it also contains a count charging appellant with having received this car after it had been stolen by Pyne, knowing it was stolen. Appellant denied the conspiracy, and testified and introduced evidence to sustain him to the effect that while he bought cars from Pyne, he did so in good faith and paid market value, and that there was no conspiracy or wrong-doing on his part; that he was not aware that the cars had been stolen. The testimony is lengthy, the details of which are omitted. The substance of the case is about as stated. There are a great many exceptions to the charge, and a great many charges were requested.
The court, stating the case to the jury, in the beginning of his charge apprised them that appellant was charged with receiving a car from Pyne alleged to be the property of Barnes; that the car was stolen by Pyne and appellant received it. Then follows the general definition of theft. Applying the law to the case this charge was given: "Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant H.A. Kolb, in the County of Bexar and State of Texas, received and concealed one automobile of the value of five hundred and fifty dollars, and that the defendant knew that said automobile was acquired by theft by the said H.R. Pyne, then you will find the defendant guilty as charged in the indictment," etc. Exception was reserved to this charge because it informed the jury that if Pyne stole a car and appellant received it he would be guilty of receiving stolen property. One phase of objection was that appellant was charged with receiving the property from Pyne that Pyne had theretofore stolen from Barnes, and the charge should have limited the consideration to this transaction, but did not. There are other cars which Pyne testified he delivered to appellant under practically the same circumstances as he did the Barnes car. Under this charge the contention is made that if appellant received any car from Pyne that he had stolen he, appellant, would be guilty. We are of opinion this criticism is correct. He was charged *Page 595 with receiving a car stolen from Barnes, not any car that he may have received from Pyne, because the evidence shows he received other cars from Pyne under similar circumstances. Under this charge he could have been convicted for receiving any car so received. It should have been confined to the Ralph Barnes car as that was the car relied upon for conviction.
There are many other questions raised, not necessary to discuss, in view of the fact that we are of opinion the evidence does not sustain this conviction and that it proves a case of theft, and not receiving stolen property. The State's case is that there was an agreement and a conspiracy between the parties to do the things testified by Pyne. Appellant's denial of them made the issue, and if his testimony is true he was not guilty of anything. The State must rely upon the case charged. It was a conspiracy to steal and sell cars for profit to each. This was the State's case as Pyne testified. Under this character of testimony it would be a case of theft. See Smith v. State, 21 Texas Crim. App., 107; Smith v. State, 21 Texas Crim. App., 133; Watson v. State, 21 Texas Crim. App., 608; Kirby v. State, 23 Texas Crim. App. 24; Trimble v. State, 33 Tex.Crim. Rep.; Davis v. State, 61 Tex.Crim. Rep. and Simpson v. State,81 Tex. Crim. 389. The Smith case, supra, reviewed this question at length. There are a great number of other cases intervening that we deem unnecessary to collate. The State's case was necessarily, under the testimony, one of a conspiracy to steal, each doing his part and did his part. If the State's case is not true appellant was not guilty of any wrong-doing. Other thefts proved may have been properly admitted for receiving the property under the theory of conspiracy, but would not be for theft under this record. Long v. State, 39 Tex.Crim. Rep..
The misconduct of the jury, the charges requested and refused, and the admission and rejection of testimony are not discussed in view of the fact that under the evidence the State has proved a case of theft and not of receiving stolen property.
The judgment will, therefore, be reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. March 2, 1921.