The State, in its motion for rehearing filed by the district attorney and assistant district attorney of Bexar County, insists that we were wrong in our original opinion in (1) holding the charge of the court erroneous in the particulars pointed out in the original opinion, and (2) in holding that the testimony makes a case of theft and not of receiving stolen property.
We are unable to agree with the first contention, and without further discussion adhere to the announcement in the original opinion that under *Page 596 the facts proven the trial court should have limited the jury to the Barnes' car.
If we do not misapprehend the evidence as shown in the statement of facts, it is to the effect that appellant advised and encouraged Pyne to steal automobiles of a certain kind, agreeing to pay him therefor the sum of $250, and when this had been accomplished Pyne had no further interest in the car or its proceeds, but appellant could sell or dispose of them in any way he desired and for whatever price he could obtain, and the proceeds and profits all belonged to appellant. In other words, the conspiracy did not extend to appellant's sale of the car and a division of the proceeds with Pyne. He received $250 flat, and then appellant could do as he pleased with it. These facts bring the case squarely within the Burow case, 85 Tex. Crim. 133, 210 S.W. Rep., 805, as contended for in the motion for rehearing. See also authorities cited in the Burow case, and Kaufman v. State, 70 Tex.Crim. Rep., 159 S.W. 38; and Middleton v. State, 86 Tex.Crim. Rep., 217 S.W. Rep., 1046. In the latter case many authorities are reviewed, the question there being whether accused was a principal or an accomplice, and the purpose of the writer of that opinion was to clear away a conflict, or apparent conflict, in the decisions of this court on that subject. We quote from that case:
"Article 74 of our Penal Code says that all persons who are guilty of acting together in the commission of an offense are principal offenders. Following this comprehensive general statement of the underlying principle, which is the acting together in the commission of the offense, come articles 76 to 78, each pointing out specific ways in which the parties may be said to act together. The six specific definitions in these articles hold that in the following cases the parties are principals:
(1) When A. actually commits the offense, but B. is present knowing the unlawful intent, and aids by acts or encourages by words; (2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A; (3) When A. actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act; (4) When A. actually commits the offense, but B., at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.; (5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense; (6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.
"Of these six statutory ways in which parties may act together and be principal offenders, it will be seen that two only require the presence of the co-principal with the one actually doing the criminal act, while four make him a principal though physically absent from the scene of the crime."
The facts in the instant case do not bring appellant within any of the four provisions making a party a principal when physically absent *Page 597 from the scene of the crime; and if the facts show the conspiracy ended when Pyne sold the car to appellant, and there was no further acting together, nor one for or in behalf of the other, the appellant could not be guilty of theft.
In view of what has already been said, it would not be amiss to review the cases cited in the original opinion as supporting the view there announced, that the appellant was guilty of theft. In the case of Smith v. State, 21 Texas Crim. App., 107, two of the Smith brothers, with other parties, went to Erath County and drove certain cattle into Parker County. M.M. Smith, the appellant in that case, was not with them when the cattle were taken in Erath County, but he took charge of the cattle in Parker County and undertook to drive them to Fort Worth and sell them, after which the proceeds, presumably, were to be divided. This court held M.M. Smith to be a principal in the theft, because the conspiracy was not completed until the cattle were sold, and the selling of them seems to have been M.M. Smith's part of the undertaking. The Smith case on page 133 of the same volume is a companion case to the one first cited. The case Watson v. State, 21 Texas Crim. App. 608, seems to be an error in citation; no such case appears to be reported anywhere in that volume, and the writer has been unable to identify the case Judge DAVIDSON intended to cite. In the Kirby case, 23 Texas Crim. App., 24, appellant was convicted for murder, and the discussion in that case was as to "principals" as applied to the facts developed in that case. Trimble's case, 33 Tex.Crim. Rep., discloses that while appellant's confederates were stealing the hogs, appellant prepared the pen to put them in. In Davis v. State,61 Tex. Crim. 611, the appellant was convicted of concealing cattle in Taylor County which had been stolen in Fisher County, and the whole case turned on the question of whether he "concealed" them, if at all, in Taylor County, and is only distantly relevant, if at all, to the question now under consideration. In Simpson case, 81 Tex.Crim. Rep., the appellant assisted in butchering stolen cattle under a previous agreement with another party that they should be stolen, butchered and the meat and hides sold, and shows that appellant participated in the disposition of the meat and hides.
From a review of the foregoing authorities and a close investigation of the facts in the several cases, it will be found that the holdings of the court in such of them as are applicable are not in conflict with but are really in support of the Burow case, supra. We adhere to the original opinion in reversing the case because of the error in the charge of the trial court as pointed out in the original opinion, but so much of the original opinion as may be in conflict with the views here expressed is withdrawn.
The motion for rehearing is overruled.
Overruled. *Page 598