Appellant was convicted of being accomplice in the crime of theft, and his punishment assessed at confinement in the penitentiary for a term of two years, and he prosecutes this appeal.
The theory of the State tended to show that the $350 alleged in the indictment was stolen from W.F. Rubuttom by his son Z. Rubottom; that the same was stolen from the bedroom of the owner on Saturday night, the 12th of February, 1898. Rubottom was a boy about 18 years old, in his father's employ, and slept at his father's house. Appellant, Deat Holt, Ell Carter, and Will Holt it is claimed were particeps criminis with appellant in advising and encouraging him to steal said money. Will Holt was an older brother of appellant, and Ell Carter was a neighbor boy. The State's case mainly depends on the testimony of Z. Rubottom, who testified substantially to the alleged theft, and to the advice and encouragement given him by appellant and Ell Carter. He testified to two prior thefts from his father, in which appellant and Ell Carter participated, as follows: One of $40, some nine months before the theft in this case, and one of $90 about a month before. His testimony tended to show that these boys made a tool of him to steal his father's money, and then proceeded to win or procure it from him under the guise of a game at cards. The witness details the circumstances connected with the prior thefts and the advice given him by appellant and Carter, and how they won the money from him which he had stolen at their suggestion. The testimony of this witness as to this particular game shows that appellant and Carter suggested that he should steal some more money from his father, and that Will Holt and Ell Carter were going to Arizona, and they would invest it for him; that he finally agreed to steal the money. For the purpose of hurrying him up to commit the theft, on the pretext that Ell Cater and Will Holt were going to start to Arizona on Friday, February 11th, they said they would stay over until Monday, the 14th, if he would promise to get the money. He further states that on February 12th, about an hour by sun, Ell Carter and defendant came to the front yard of his father's and said Will Holt and Ell Carter wanted to leave, and were waiting for him to get some more money, and if he did not get it pretty soon they would leave anyway. They said that Will Holt was at Merkel waiting for Ell Carter. In this connection Ell Carter suggested to witness Z. Rubottom that he get the money and play cards, and get even on what he had lost. Witness told them he did not care to play cards, but would rather let them have it to invest. Ell Carter was to sleep at defendant's house, and he was to come up and let them know if he got the money. Defendant's house was 150 to 200 yards distant from his father's. About 9 o'clock at night they came again, and called witness out, and asked him if he was pretty sure to get the money, and he said he would try; and they said they would wait around the place a while, and if he did not come out in an hour or *Page 296 two they would be at Deat Holt's house. He succeeded in stealing the money from his father's room, where he was asleep, about midnight. When he got the money he went up to Deat Holt's house, and waked him play cards, and said he would stock the cards and help him (witness) to win back all his losings. The boys got up, and went up to his father's barn, and got a lamp and counted the money. They began playing, Sometimes the game fluctuated, but before day Ell Carter had won all of his money. He asked him to let him have some of it back, but he would not, and told witness if he got into trouble about it he would help him out if he could. The money was shown to be $230 in gold, the gold being in $20 pieces, except one $10 gold piece, and the balance in currency. The money was missed by W.F. Rubottom on Sunday morning, February 13th. It appears that his father suspected Z. Rubottom, who finally admitted to him that he had gotten the money. He was arrested on that evening at Buffalo Gap, where the theft occurred, and taken to Abilene to be lodged in jail. ON the way they met Deat Holt returning from Abilene. On the following Wednesday, Deat Holt was arrested at San Angelo. On his arrest he admitted that he had $100 in gold of the money, which he had deposited with a party in Abilene, before he left Buffalo Gap. This money, in $20 gold pieces, was recovered. Ell Carter was arrested about thirty miles west of Abilene, in a hack, with Will Holt and a party known as "Tennessee," then on their way to Arizona. From him was recovered $294 — $100 in gold and the balance in currency. Will Holt, it seems, was tried before appellant, and was acquitted. Ell Carter was tried after appellant, and convicted. The State relied on a number of circumstances to corroborate the witness Z. Rubottom, which are not necessary here to be stated.
The first question presented by the assignments of error arose on the action of the court in charging the jury on the various counts in the indictment. The indictment contained three counts: The first count charged the theft of the money by Z. Rubottom, and that appellant was a receiver of the same, knowing that the same had been stolen; the second charged appellant with the theft of said money; the third charged appellant as an accomplice in the theft of said money, to wit, that the same was stolen by Z. Rubottom, and that appellant before the theft had advised and encouraged said Z. Rubottom to steal the same. After the evidence was all in, and the argument had been made, the court read its charge to the jury, which submitted alone the first count in the indictment, thus eliminating the other two counts from the consideration of the jury. Thereupon appellant moved the court to instruct the jury to bring in a verdict of not guilty, as the first count was defective. The court's attention being thus called to the defect in the first count, in that it failed to allege the ownership of the stolen property, while the jury were yet in court, and before he had delivered the possession of his *Page 297 charge to them, he recalled the submission, and prepared a new charge, predicated alone upon the third count in the indictment, thus eliminating from the jury altogether the first and second counts. Appellant objected because by the action of the court the first and second counts had already been dismissed and eliminated, and it was incompetent for the court at that stage of the case to recall its action, and rehabilitate the case on either of said dismissed counts. We differ with appellant as to his contention. The jury were not in possession of the charge of the court, and had not retired to consider the case, at the time the objection was made and when the court recalled its action. All of the counts had been before the jury up to this time, and the case tried fully upon all evidence adduced as to each, and certainly, until the case had been fully submitted and the jury had retired to their jury room with the charge of the court, it was competent for the court to recall its action as to the submission of any particular count. And when the court's attention was called to the fact, no matter how, that the submitted count was defective, and the conviction could not be maintained upon it, it was within the province of the court at this juncture to revise its action, and to submit the case upon any other good count, eliminating altogether from the consideration of the jury the count upon which the case had previously been submitted. No possible injury in this action could result to appellant. There was no step that he had taken in the meantime which was calculated to imperil or injure him, and, in our opinion, the action of the court violated no legal principle involved in a fair and impartial trial of appellant.
Nor did the court err in overruling appellant's motion in arrest of judgment. The fact that in writing the name "Rubottom" so that it might have been read "Rubotton" in one place in the count upon which he was convicted was not calculated to mislead or confuse anybody. The name "Rubottom" had previously been properly spelled, and the letter "m" at the termination of the name written out in full, previous to where it is claimed it was written "Rubotton," and he was referred to as the "said Rubotton."
Nor is the objection well taken to the third count, on the ground that it did not contain an allegation of the theft of said property. The count is in accordance with the approved authorities, and the allegation "that the grand jurors further present," etc., was not the beginning of a new count, and could not be so construed. It was a part of the third count.
Appellant reserved a bill of exceptions to the action of the court limiting the effect of the testimony in regard to the sums of $40 and $90 that had been taken by Z. Rubottom prior to the taking of the money mentioned in this indictment. The objection is that the charge is upon the weight of the evidence. The charge, under an unbroken-line of decision in this State, is a correct enunciation of the law, and the court did not err in giving the same. Whenever extraneous crimes are introduced in evidence before the jury, and there might be danger of a conviction for *Page 298 these extraneous crimes, the court should limit the effect of such testimony for the purpose for which it was introduced. The court did this in the charge complained of.
Appellant "objected generally to any acts and declarations of Ell Carter after he had separated from defendant; and thereafter the State proved that, after defendant and Ell Carter separated, the said Ell Carter proceeded to near Merkel, and then he and Will Holt and the boy named 'Tennessee' were arrested about twelve miles west of Merkel, a distance of about twenty-three miles from Abilene, on February 13, 1898." This was objected to, because these matters occurred after the separation of the parties. There are no declarations of any of the parties set out in the bill as having been admitted against appellant. "It was competent to show the arrest of the parties, and the place of their arrest.
The defendant introduced the witness Will Holt, who testified that he had been previously acquitted of this offense, and testified at length in regard to the circumstances detailed by the accomplice, with the evident purpose of contradicting the testimony of the accomplice. On the cross-examination of said Will Holt, he was required to answer that he had failed to testify in his own behalf when he was upon trial. This was objected to, because it would compel the defendant to take the witness stand in his own behalf. There is no merit whatever in this contention.
Appellant also excepted to the action of the court in permitting Z. Rubottom to testify in regard to the $40 that he had stolen from his father, and that prior to that time defendant had in several conversations advised him to steal the money from his father. This testimony was clearly admissible. These acts and conversations and agreements between Z. Rubottom, defendant, and others continued over several months, from May to the following February, showing a system and plan and concerted scheme. See Hennessey v. State, 23 Texas Crim. App., 340. It may also be stated that the court limited the effect of this testimony in his charge.
Appellant requested a special instruction to the effect that the jury should have been charged with reference to any explanation that he may have made with reference to his possession of the $100 of the stolen money. The appellant made no explanation consistent with his innocence. The testimony throughout, from beginning to end, shows that he was cognizant of the whole transaction, and was a particeps criminis, and if Z. Rubottom committed the theft appellant was cognizant of that fact, and assisted in beating said Z. Rubottom out of the entire amount in the gambling transaction, after they had agreed that the money should be taken to Arizona and there invested. If he obtained the money by the gambling transaction, or if he obtained it as a gift from Ell Carter, it was not an innocent explanation, because at the time he so received it, in either manner stated, he was guilty as an accomplice to the theft. There could be no innocent explanation of his possession of the money in question, in view of his guilty participation in the agreement and advice before referred to. *Page 299
Appellant also complains of the action of the court permitting evidence the fact that, when he was first informed of the arrest of Z. Rubottom for this offense, he "tucked his head," and looked like he had done something wrong. Upon objection, the opinion of the witness that the defendant looked like he had done something wrong was stricken out, and the jury instructed to disregard it, but the evidence that he "tucked his head" was permitted to stand. This action of the court was correct. The defendant was not under arrest, and his action should be admitted for whatever it is worth.
We are of opinion that the evidence is amply sufficient to support the conviction. The accomplice made out the case clearly and conclusively, and, so far as this character of testimony can prove a case, it is sufficient. The corroboration is ample, under both phases required by the statute. The judgment is affirmed.
Affirmed.
HURT, Presiding Judge, absent.
ON MOTION FOR REHEARING.