ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.Appellant has filed a motion for rehearing in which he earnestly insists that we erred in several respects in the disposition of this case on original submission. His first contention is that we erred in holding the indictment sufficient to charge him with being an accomplice to the offense of swindling alleged to have been committed by George Strong. He contends that the indictment contains three counts, the first of which charges •George Strong and appellant jointly with the commission of the offense of swindling; the second count charges George Strong alone with the offense of swindling; and the third count merely charges' appellant with aiding George Strong in the commission of the offense.
We have carefully considered the indictment in the light of the objections urged thereto and ¡are firmly convinced that it contains but two counts, in the first of which appellant and *125George Strong are jointly charged with the offense of swindling Ella V. Smith, acting Deputy County Clerk of Panola County, in that by means of false pretenses they acquired from her (Ella V. Smith) title and possession of a county warrant in the sum of $169.00. The second count charges that George Strong did unlawfully by means of false pretenses acquire from A. J. Holmes, Jr., title and possession of a county warrant in the sum of $93.50 which is set out in haec verba in the indictment; and in connection therewith, it charged that H. A. Parish, prior to the commission of said offense by the said George Strong, did unlawfully and willfully agree with the said George Strong to aid him in the commission of said offense, etc.
The court submitted the case to the jury only upon the second count. Consequently the first count passed out of the case.
It will be noted that in the second count appellant was charged as an accomplice to the offense of swindling alleged to have been committed by George Strong, since he was not ° present at the time and place of its commission. This was proper. There could not be an accomplice unless there was a principal, and the principal had to be correctly charged with the offense and then the accomplice charged with aiding, abetting or encouraging the principal in its commission. In support of the conclusions reached by us, we refer to the following cases: Crook v. State, 27 Tex. Cr. App. 198 (in fact p. 239); Templeton v. State, 132 Tex. Cr. R. 577; Warren v. State, 67 Tex. Cr. R. 273.
Appellant now contends that the court should have quashed the indictment on the ground that it charged two separate and distinct offenses in different counts not growing out of the same transaction. Even if it be conceded that this is true, the first count was withdrawn and not submitted to the jury, which was tantamount to having been quashed by the court. See 12 Tex. Jur. p. 565, sec. 245, and cases cited. Consequently no prejudicial error resulted to the appellant by reason thereof. Appellant claims that the reading of the first count to the jury was highly prejudicial to his legal rights. We do not believe there is any merit in his contention inasmuch as there is testimony of other transactions in which appellant and George Strong participated in perpetrating fraud on the County Clerk of Panola County in the same way and by the same means and method.
*126Appellant reiterates his contention that the trial court erred in admitting evidence of other offenses of like character as the one charged, and in the commission of which the same general plan was pursued and the same methods were resorted to in their commission. We have fully discussed this question in the original opinion and see no good reason why we should write further on the subject.
He next contends that we erred in holding the testimony of the witness, E. N. Martin, to be admissible, as well as the exhibit which was introduced and which was used by the expert (Martin) in explaining the means by which he discovered the erasure of the appellant’s name from the account presented to and filed by the County Clerk upon which the warrant in question was issued. It is true that the witness did not make the photograph himself, but he looked through a machine and by the light thereof discovered the name of H. A. Parish on the account and testified that the exhibit properly reflected the name of H. A. Parish, as he saw it through the light. In our opinion, this question was properly disposed of in the original opinion.
Appellant next contends that the evidence is insufficient to justify and sustain his conviction because he (appellant) testified that when he first heard that “George Strong was cashing warrants against his account he always said it is not right and that it is all a forgery of my name and I had nothing to do with it.” Whether this testimony is true or untrue is not for this court to say. The jury are the sole and exclusive judges of the facts proven, the credibility of the witnesses and the weight to be given to their testimony; and if there are sufficient facts proven by the State which would sustain a finding of guilt by the jury this court would not be authorized to disturb that finding. In our opinion, there is sufficient evidence which, if believed by the jury, would authorize and sustain a verdict of guilty.
Believing that the case was properly disposed of on the original submission, the motion for rehearing is overruled.