dissenting. — I can not concur in the decision in this case because I think the Court erred in refusing to give at the. request accomplice must be received with great caution, the jury should pass upon the weight to be given to such evidence, and when such evidence is uncorroborated, it should be carefully weighed by the jury with great caution, but if such evidence carries conviction to the mind of the jury of the guilt of the accused beyond and to the exclusion of every reasonable doubt, then the jury should give to such evidence the same effect as would be allowed to a witness who is in no way implicated in the offence.”
It is the settled law in this State that an accused has the right, as matter of law, to have the trial court- instruct the jury that the testimony of an accomplice should be received with great caution, and the refusal to so charge when requested will be error. Anthony v. State, 44 Fla. 1, 32 South. Rep. 818.
The charge was -refused upon the theory that the witness, Jones, who plead guilty to the larceny of the stolen goods, which the defendant is charged with having received, knowing them to have been stolen, was not an accomplice.
*109The witness, Jones, on whose testimony the plaintiif in error was convicted, testified with regard to the transaction as follows: “One day I was going ont to the highway school hauling cement. I stopped at Mr. Bailey’s store to get some cake. He says, ‘I want some sugar.’ I says, ‘I ain’t got no sugar; I don’t know where to get none.’ He says, ‘they are unloading three or four cars down in the Seaboard yard. You go down there and bring me three barrels of sugar, and I will give you fifty dollars.’ I says, ‘I am scared to go down yonder; the yard man might shoot me.’ He says, ‘He ain’t going to shoot you. lrou go get it, and if you get anything I will pay you out.’ I said, ‘I am scared to do that.’ He said, ‘I will get you out of anything you get in.’ I say, ‘I can’t tell you anything about that?’ and in a day or two I went back out there to carry another load, and I stopped there again, and got me a package of cigarettes. He says, ‘You going to bring that sugar?’ I said, ‘No, sir.’ He says, ‘Here is fifty dollars I will give you to get it.’ I say, ‘How do you know any down there?’ He says, ‘I know it is down there.’ I went and got the three barrels and carried it to his store, and he give me thirty dollars, and told me to come back out that night and he would give me the other twenty.”
Section 3178, General Statutes of Florida of 1906, provides, “Whoever aids in the commission of a felony; or is' accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon.”
Each of these parties could have been tried for a substantive offence and the other would have been an accessory thereto. “The generally accepted test as to whether a witness is an accomplice, is whether he himself could *110have been indicted for the offence either as principal or accessory.” I R. C. L. 157.
The word accomplice “includes in its meaning all persons who participate in the commission of a crime, whether they so participate as principal, aiders and abettors, or accessories before the fact.” I. R. C. L. 132.
Bouvier defines an accomplice as “One who is concerned in the commission of a crime” — one who steals goods and furnishes them to another who knows they were stolen, is surely “concerned in the commission” of the ciime of receiving stolen goods.
“The term in its fulness includes in its meaning all persons who have been concerned in the commission of a crime, all participes crimvnÁs, whether they are considered in strict legal propriety as principals in the first or second degree,, or merely as accessories before or after the fact; Bouvier citing Fost. Cr. Cas. 341; 1 Russ. Cr. 21; 4 Black. Com. 331; 1 Phil. Ev. 28; Merlin Report. Complice.”
In the case of People v. Coffey, 161 Cal. 433, 119 Pac. Rep. 901, 39 L. R. A. (N. S.) 704, the Court said, “If the witness has committed the crime, if he has knowingly aided and abetted in its commission, if he has advised and encouraged its commission, the existence of any one of these facts, admitted or established stamps his status as ‘that of an accomplice.”
In the instant case Jones aided and abetted in the commission of a crime of receiving stolen goods, and was an accomplice, and the charge provided for in our statute with regard to the testimony of an accomplice was erroneously refused.
The fallacy of the reasoning of those courts that hold that because certain acts may constitute two distinct crimes, for either of which both the parties implicated *111may be tried and convicted, bnt for the other, only one of the parties could be convicted, and that they would be accomplices in the first instance, bnt not in the second, is discussed and exposed in case of People v. Coffey, supra, where the Court said, “The commonest of these errors may thus be expressed; the law declares that all persons concerned in the commission of a crime, whether they directly commit it, or aid and abet in its commission, or advise and encourage its commission, are principals. They are, of course, accomplices. Therefore an accomplice is one who may be indicted for the same crime as that charged against the person on trial, and, therefore, if he cannot be charged with the same crime, he is not an accomplice. Here is epitomized the reasoning of such cases as State v. Durham, 73 Minn. 150, 75 N. W. Rep. 1127, 11 Am. Crim. Rep. 179, and the fallacy of the reasoning must be obvious. One is an accomplice in a crime because of the part that he has taken in it, not because he may be indicted as a principal. The latter is a mere accidental circumstance, depending upon the language of the statute, and in no way affecting the true touchstone, namely, the part which the witness has taken in the offence. The judicial declaration that, under a statute such as our paragraph 31 of the Penal Code, all accomplices may be indicted as principals, is perfectly sound. But the attempted reasoning from this that if a person cannot be indicted as a principal, he is, therefore, not an accomplice, is absolutely fallacious. To illustrate: In the present condition of our law, no one would question but that the man who instigated and incited a murder, and the man who actually committed the murder, were both accomplices in the crime of murder. No one would question, moreover, but that both could be indicted as principals in the crime of murder. But suppose that *112tomorrow the Legislature, as it would be quite competent for it to do, should declare that where a man had incited murder, he would be indicted only for subordination of murder, ánd upon conviction be punished by death; but that the man who committed the murder under such incitement should be charged with murder, and upon conviction should be punished by life imprisonment, there would be presented a case where the law denounced as different crimes the different acts of the parties. Would it for a moment be said that they ceased therefore and thereby to be accomplices in the crime of murder? Or, again, the law today declares that the giver of a bribe may be punished for the giving; that the officer who receives a bribe may be punished for the receiving. A offers B a bribe, and by this means advises and encourages the commission of a crime. B, in turn, consults his friend C, who ‘advises and encourages’ B to accept the bribe. B returns to A and agrees to A’s corrupt proposition, and A pays the bribe money. 0 is admittedly an accomplice. He has advised and encouraged B in the commission of a crime, but A has done precisely the same thing, and has gone even further than B, in that he has not only advised and encouraged, but has become a party to the criminal agreement. By what logic or reasoning may it be said that C is an accomplice, and A is not? Not because of the accidental circumstance, if such circumstances exist, that A can be charged with another crime growing out of the same acts; not because of the accidental circumstance, if it exist, that A cannot be charged with the same crime as B, for these are purely accidental circumstances, and are not of the essence of the consideration.”
For the error in refusing to give the requested charge, I think the judgment should be reversed.