1. There is no direct evidence in the record that the defendant committed the theft; Ho witness saw him take the money charged to have been stolen, and he did not Confess that he had taken it. Circumstantial evidence alone is relied upon to establish defendant’s guilt. This being the case, the court should have instructed-the jury in the rules applicable to that kind of evidence. Ho such charge was given, and therefore the court failed to give the jury the law applicable to the case. (Lee v. The State, 14 Texas Ct. App., 266; Dovalina v. The State, 14 Texas Ct. App., 312.)
2. It was contended by the defendant that Bigger, the principal witness for the State, was an accomplice in the theft. We think the testimony of this witness tends to show that he was an accomplice. He states that he was present when the defendant picked up' money near the place where the alleged stolen money had been left; that he told the defendant he must “ whack up,” that is, divide the money with him; and that defendant gave him a part of the money, which he, witness, afterward returned to the alleged owner. We think, upon this witness’s own testitimony, the issue was fairly presented whether or not he was an accomplice in the theft. Ho other witness saw the defendant with any money. Bigger unquestionably knew that the money did not belong to the defendant, and yet he demanded a division of it, and received a portion of it. If his own statements be true, he was himself a particeps criimnis to the extent, at least, of receiving stolen property, knowing it to be stolen. We think the evidence demanded that the issue thus raised should be submitted to the consideration of the jury, under proper instructions from the court. This was not done in the charge of the court, and special charges requested upon the subject by defendant’s counsel were refused. In refusing the charge upon accomplice testimony, with reference to the witness Bigger, we think the court erred. (Sitterlee v. The State, 13 Texas Ct. App., 587; Clark’s Crim. Law, p. 552, note 224.)
3. Defendant proposed to prove by a witness that, just before, he was arrested upon the charge of the theft of the money, he had a conversation with the witness in regard to finding some money at the place where the alleged stolen money was *98lost. We are not informed by the bill of exception taken to the ruling of the court rejecting this proposed evidence, what the conversation was, and we are therefore unable to determine the materiality of it. If, in that conversation, the defendant, for the first time, gave an explanation of his. possession of the alleged stolen money, and. .such explanation was.reasonable, and not shown to be false, it would have been material to his defense, and would have been admissible in his favor. (Sitterlee v. The State,, 13 Texas Ct. App., 587.) Where, in a prosecution for theft, the State relies upon the defendant’s possession of recently stolen property as an inculpatory fact, any explanation given by the defendant, when his right to the property is for the first time called in question, respecting his possession of it, is admissible in evidence in his favor; and if such explanation be reasonable and exculpatory, the State is charged with the onus of proving the falsity of it, before such possession can, of i tself, be held criminative of the accused. (Anderson v. The State, 11 Texas Ct. App., 576.) But, as before stated, the bill of exceptions does not state facts sufficient to enable us to determine whether or not any error was committed by the court in rejecting the proposed testimony. (Davis v. The State, 14 Texas Ct. App., 645.) Our object in noticing this question is to call attention to the rules governing the admissibility of such testimony, in case the same should be sought to be introduced on another trial of this case.
Because the court failed to instruct the jury as to the law applicable to the case, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered May 3, 1884.