Appellant, in his motion for a rehearing, asserts that we erred in holding that the trial court was correct in submitting to the jury for their determination the question of whether or not Bostick was an accomplice witness and in declining to instruct them that he was such a witness as a matter of law. Bostick was not a participant in the commission of the burglary of the school house and was not charged with said offense. Consequently he was not a principal in the offense and therefore was not an accomplice witness by reason thereof. This brings us to a consideration of the question as to whether or not he is an accomplice witness by reason of having purchased some of the property taken by appellant and his co-defendant in the burglary. His testimony touching this question is fully set out in our original opinion and need not be restated here. It is true that appellant testified that he felt suspicious when they brought the stove to his house in the dead hours of the night. However, he did not think the stove was stolen. He did not know it. He said that the stove, when new, was worth about $45.00, but it had been used; that it was a second-hand stove; that he paid $17.00 for it, which was a fair price; that after using it a day or two he discovered that it was not as good as his old stove and he sold it to Reed at the same price that he paid for it. It will be noted that he did not admit that he knew the stove had been stolen, nor was such fact proven beyond doubt. Therefore, it was proper for the court to submit the question to the jury to be determined by them. Appellant cites us to quite a number of cases which he contends supports his contention. A careful examination of them will show that in some of the cases the witness participated in the commission of the offense which, of course, made him an accomplice witness. In other cases, it was either admitted by the witness that he knew the property was stolen or it was proven beyond *Page 572 doubt. In such instances, it is proper for the court to charge that the witness is an accomplice as a matter of law.
Appellant next contends that we erred in holding the evidence sufficient to sustain his conviction. We have again reviewed the statement of facts but remain of the opinion that the evidence is sufficient upon which the jury could base their verdict.
Believing the case was properly disposed of on the original submission, the motion for rehearing is overruled.
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.