This is a conviction for the theft of the cattle of Loyd Barnes. Upon circumstantial evidence alone the State relied and obtained the conviction in the case. The law applicable to such a case was not given in charge to the jury, wherefore counsel for appellant excepted and reserved his bill of exceptions. This was error. (Brown v. The State, 23 Texas, 195; Cave v. The State, 41 Texas, 182; Hunt v. The State, 7 Texas Ct. App., 212; 9 Texas Ct. App., 105; Id., 275; Id., 299; Id., 476; 10 Texas Ct. App., 293; Id., 485; Id., 507; 12 Texas Ct. App., 283; Id., 657; 13 Texas Ct. App., *36551; Id., 309, 493, 669; 14 Texas Ct. App., 96, 312; 16 Texas Ct. App., 144, 237, 258, 341.)
There was evidence adduced upon the trial strongly tending to prove that appellant was a hired hand, and that his connection with the cattle grew out of this fact. Upon this phase of the case the court instructed the jury, but in such manner as may have impressed their minds with the belief that if defendant as a hired hand assisted Steve Blakely in driving the cattle, knowing them to have been stolen, after they were actually stolen by Blakely, he would be guilty. We are not certain that the charge of the court was calculated to have this effect upon the jury, but -we deem it proper here to make these observations:
1st. Ho person can legally be convicted as a principal in theft unless he took the property. To constitute him a taker it is not necessary that he should be present at the time and place when the property was taken. If not present, he must be keeping watchout, or when the property was taken he must be doing the part of the work assigned him in connection with the plan of the conspirators, and in furtherance of the common purpose. In other words, to make a person a principal in theft he must be the taker, or he must , be present aiding others, etc., or keeping watch when the property was actually taken; or, if not present or keeping watch, he must be doing something in aid of those who are present, or doing something in furtherance of the common design. He must be engaged in doing these things at the time the property was taken. (Cook v. The State, 14 Texas Ct. App., 96; O'Neal v. The State, Id., 582.)
Again: if the theft was complete before a party had any connection with the transaction, he is neither an accomplice nor a principal. Then, if appellant assisted Blakely in driving the cattle after he (Blakely) had stolen the same, appellant would not be guilty of theft, though he may have known that Blakely had stolen the cattle. If guilty, it would be of receiving stolen property, knowing the same to have been stolen.
It is passing strange, indeed, that these questions should ever be permitted to arise in a case. For, if there is the least doubt as to whether a party is a principal, accomplice, accessory or a receiver, in such cases counts should be inserted for each, and all of these nice questions will thus be eliminated from the case.
Because the court failed' to charge the law applicable to a case of circumstantial evidence, the judgment is reversed and case remanded.
Reversed and remanded.
[Opinion delivered June 6, 1885.]