In his motion for rehearing and brief thereon appellant contends "the evidence is not legally sufficient, . . . aside from that of Willie O'Leary, an accomplice, to warrant a conviction," and that the testimony of the accomplice was not sufficiently corroborated.
The State's theory and contention was that appellant and O'Leary were principals in the theft of the automobile.
The testimony was somewhat fully stated in the original opinion. But it will now be more particularly stated with reference to appellant's contentions.
The evidence establishes that Mr. O'Rourke's car — automobile, — was stolen from him at Cycle Park in the City of Dallas in the night of June 18th. On that same night about 10 or 11 o'clock appellant and O'Leary together appeared at Mr. Hildreth's home at Blue Ridge, in Collin County, with said car. Blue Ridge is more than five miles beyond McKinney from Dallas, perhaps forty or fifty or more miles from Dallas. Early the next morning the car was recovered from appellant and O'Leary at Mr. Hildreth's by an officer, who at the time arrested them for the theft of it. The car was identified and restored to Mr. O'Rourke.
Mr. Hildreth swore he met appellant first in Dallas May 30 at Mr. Burleson's. Appellant himself swore this meeting was three or four days before June 18th — the night the car was stolen. He also swore, "We (O'Leary and himself) left Dallas (for Hildreth's) on the night of the 18th of June," with the car. Hildreth further swore: "I saw him (appellant) up about Blue Ridge on the 19th day of June this year. This red-headed boy (O'Leary) was with him. Smith introduced the red-headed boy to me as Tom Hawkins; that was at my house. They came up there in a Ford car. I talked to this defendant at that time. . . . He drove up to my house and called me up out of bed and wanted to sell me a Ford car. He says, `I have brought you the car.' I didn't recognize who he was and I said, `What car?' He said, `The car I was telling you about down at Burleson's. I said, `I don't want any car now; I have a new one,' and he said, `You would buy a bargain.' He said, `You told me you would buy it,' and I said, `You boys come in and we will fix you a bed and I will look at the car in the morning.' He insisted that I take a look at it, and then I went out and seen it wasn't the car recommended to me, and I asked what the price was. They said they wouldn't go to bed, but would drive in my lot, and I said, `Boys, the barn there is vacant, dover (drive) over there if you want to sleep *Page 489 in the car and I will look at the car in the morning. So I suspicioned something, and sent my boy up town to the constable early the next morning and he came down there and arrested them. Mr. Smith was driving the car. Up to that time I had never met O'Leary; I had met Smith prior to that time. When I met Smith in Dallas he told me he had a friend that had a car down here that had not been run but a few miles and he would take $275 for it; that was my business down here, to buy a car, and I said, `Where is your friend?'"
On cross-examination he said he didn't know who drove the car to his house at Blue Ridge. That appellant told him it was a new Ford, had been run only a few miles, "but I know it was an old car and had been run lots from the looks of it." That he didn't know who had possession of the car, "only Smith (appellant) drove it back to the barn, or backed it in the barn, and then drove out to the pasture the next morning to look at the horse I traded him." After appellant himself alone failed to sell Hildreth the car that night apparently as his own, he then and not till then told it was O'Leary's, and falsely stated O'Leary had owned it two months.
According to the positive testimony of O'Leary, he and appellant together, as principals, stole the car. He was corroborated in that, immediately after the car was stolen they were together in possession of it, and together at once took it to Mr. Hildreth's, where appellant himself tried to sell it to Hildreth, whom, in effect, he swore he had staked out to sell it to, and told him, "I have brought you the car"; and even as between him and O'Leary, what he said and did showed that he was in control of the car and not O'Leary. But in any event, that they were together in possession, as against the true owner and all others.
Appellant in his own testimony flatly contradicted himself and was flatly contradicted by others. In trying to avoid the fact of his control and possession of the car, he first swore O'Leary got him to go with him in the car to Hildreth's, and agreed to payhim $5 therefor. Then later he swore, "I was to get nothing out of the proceeds of this car except $5 that Mr. Hildreth was topay me for my trouble. O'Leary was not to pay me anything atall." O'Leary swore he and appellant were to divide equally what they got for it. Appellant swore he went with O'Leary to Hildreth's with the car, but did not try to sell it — he only introduced O'Leary to Hildreth as Tom Hawkins. As shown above, by Hildreth's evidence, appellant alone at first tried to sell the car to Hildreth, and pressed him to buy that night, and that appellant was in control of the car as to O'Leary. He drove it to Hildreth's — at least did not deny doing so, and after he failed to induce Hildreth to buy that night he ran or backed it into the barn, and next morning he drove the car into the pasture to see the horse, etc.
O'Leary, the accomplice, swore he did not steal the car alone, but that he and appellant, before stealing it, agreed to do so, to sell it to Hildreth, whom appellant had staked out to sell it to, and that they went together, and together did steal it, and together took it to Hildreth's. *Page 490
The evidence was amply sufficient to show that appellant and O'Leary were principals in stealing the car, and that O'Leary was sufficiently corroborated under the statute and decisions thereunder.
The motion is overruled.
Overruled.