This is a conviction for the theft of a steer, the property of J. A. Wilkins. The .record discloses that there were many cogent facts tending to prove that one Ben Heath, upon whose testimony the State mainly relied for a conviction, was an accomplice. Upon the subject of an accomplice the trial judge charged as follows:
“ An accomplice is one who is not present at the commission of an offense, but rvho before the act is done advises, commands or encourages another to commit the offense, or who agrees with the principal offender to aid him in the offense, or who proposes aid prior to the commitment of an offense, for the purpose of assisting in the execution of the offense. In this case, if you find beyond a reasonable doubt that the testimony of the witness Bob Heath is true, then, he is an accomplice, and I charge you that a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.” To this charge defendant excepted when given, and reserved his bill.
*343Whether the testimony of the witness was true or false is never the test as to whether he is an accomplice or not. His testimony may be false in some respects and true in others, and yet he may or may not be an accomplice. If true in regard to some part and false in another, the jury would be placed in an embarrassing situation; hence this charge is calculated to confuse and mislead the jury.
Again, this charge makes Heath an accomplice alone in the event that the jury should believe his testimony to be true; thus excluding the jury from considering the testimony of the other witnesses in determining the question. This is error for which the judgment is reversed.
The learned judge seéms to be impressed with the idea that the word accomplice as used in article 741, Code Criminal Procedure, and as used in article 219, Penal Code, are to be given the same meaning. In this there is mistake, because this word as used in article 741, Code Criminal Procedure, includes principals and accessories as well as accomplices technically. (Williams v. The State, 42 Texas, 392; 1 Texas Ct. App., 301; id., 628; 2 Texas Ct. App., 588; 3 Texas Ct. App., 575.)
As applicable to the facts of this case there may not have been error in the charge in regard to this matter, for the evidence tends to show that Heath was an accomplice technically.
Because of the error in the charge as above noted, the judgment is reversed and the case remanded.
Reversed and remanded.
[Opinion delivered November 14, 1885.]