(dissenting).
As duly noted by the majority, the basis for the revocation of appellant’s probation is an alleged violation of Section 1 of Article 1436b, V.A.P.C., the constitutionality of which was upheld without discussion in Sellers v. State, 163 Tex.Cr.R. 560, 294 S. W.2d 813, “over a vigorous and well reasoned dissent.” And while observing that the allegations of the motion to revoke did not comply with the requirements of an indictment or even follow the wording of Section 1 of Article 1436b, supra, the majority held, without setting out such allegations, they were sufficient to give notice to the appellant of the offense which would be relied upon to show a violation of a probationary condition. Then the majority proceeds after a review of the evidence to hold, for the first time in this state, that the uncorroborated testimony of an accomplice witness, which does not even make out a complete case against the appellant, is sufficient to authorize a revocation of probation. I cannot agree.
On November 30, 1965, appellant entered a plea of guilty before the court to the offense of entering premises with intent to steal mercury. See Article 1436b, Sec. 1, V.A.P.C. His punishment was assessed at five years, but the imposition of the sentence was suspended and the defendant was placed on probation subject to certain conditions of probation.
*58Among the conditions of probation was the requirement that the appellant shall “(1) commit no offense against the laws of this State or any other State or of the United States of America.”
On May 29, 1969, the State filed a motion to revoke appellant’s probation alleging that he had violated his probation in the County of Brooks and State of Texas and further alleged that “on or about the 4th day of March, 1969, Oscar Gonzalez did then and there enter upon the premises of Mobil Oil Corporation, an incorporated Company, without the consent of Mobil Oil Corporation, the owner of said premises, with the intent to steal any mercury from and out of any gas meter by or through which the flow, movement, or pressure of gas is measured or regulated, or which is capable of being used to measure, regulate or control the movement of gas.”
On June 20, 1969, a hearing on said motion was had following which the court revoked appellant’s probation and pronounced sentence.1 On the same date notice of appeal was given.
The appellant contends there was insufficient evidence to show a violation of probation and the court abused its discretion in revoking probation.
Leopoldo De La Garza testified he was a “junkman” in Premont, Jim Wells County. On the morning of March S, 1969, he discovered a jug of mercury at his place of business and did not know how it “got there.” He related he took the same to a salvage yard in Corpus Christi and received $200.00 for eighty pounds of mercury. De La Garza testified that after his return from Corpus Christi (the time being unspecified) the appellant, Oscar Gonzalez, told him the mercury was his and he gave the appellant $90.00 which was all that was left of the $200.00 at the time.
It was stipulated that Blackie Segovia, an employee of the Industrial Salvage Company in Corpus Christi, would testify that De La Garza brought a jug of mercury to him on March 6, 1969, at his place of employment and that the mercury weighed 80 pounds and he paid De La Garza $200.-00; that on the same day or the next day he turned the jug of mercury over to Tom Goates. It was further stipulated that Tom Goates would testify that he took the jug of mercury received from Segovia and turned it over to Jess Sweeten.2
Jess Sweeten, an investigator for the Mobil Oil Company and Mobil Pipe Line Company, testified that he took about a two pound sample of the mercury he had received from Goates and turned such sample over to Donald McAlpin, an independent chemist, in Dallas.
McAlpin, the chief spectrographer for Southern Spectrographic Laboratory, testified he received a little less than half a pound of mercury from Sweeten to determine if the sample contained any gold. He explained that around 1964 Mobil Oil Company started marking their mercury by adding gold as a trace element and stated that if “any mercury came into the lab with gold in it we would suspicion Mobil Oil Company mercury.” He testified that Signal Oil and Gas Company used silver as a tracer, but he did not know what Texaco, Gulf, Humble and other companies used as a tracer; that mercury with gold as a tracer was used by Mobil Oil throughout Texas and the United States. McAlpin related that his chemical analysis showed that the *59mercury sample delivered to him contained gold.3
It was shown that mercury containing a trace of yellow color had been placed in 14 meters on the Mobil Oil Company premises at the La Gloria Plant in Brooks County, Texas; that the mercury in all 14 meters, being approximately 98 pounds, was discovered missing on March 5, 1969; that the charts at each meter reflected the mercury had been drained or removed at approximately midnight on March 4, 1969; that the mercury had been taken without consent or permission.
If Section 1 of Article 1436b is constitutional, then it was established that an offense was committed by someone. There was, however, no direct evidence that it was committed by the appellant. There was no showing that the appellant was ever in Brooks County or had been at or near or on the premises in question at any time. No one placed appellant in unexplained possession of recently stolen property.
The only evidence linking appellant with the missing mercury is .the statement of the man (De La Garza) to whom the mercury sold in Corpus Christi was traced. Such witness was an accomplice witness as a matter of law and his testimony did not even make out a complete case against the appellant or sustain the allegations of the motion to revoke. Still further, the proof did not establish that the mercury traced to De La Garza belonged exclusively to Mobil Oil Company and no other company or person, and even if it did, there is no proof that the mercury came from the premises in Brooks County as alleged and not from some other Mobil Oil premises in Texas or elsewhere in the United States. No effort was made to show that the mercury missing from the Brooks County operation was the only mercury recently reported missing in Texas or elsewhere.
It is true that this Court has consistently held that a hearing to revoke is not a trial in a constitutional sense. See Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774; Ex parte Gomez, Tex.Cr.App., 241 S.W.2d 153; Jones v. State, 159 Tex.Cr.R. 24, 261 S.W.2d 317; Ex parte Bruinsma, 164 Tex.Cr.R. 358, 298 S.W.2d 838, cert. den., Bruinsma v. Ellis, 354 U.S. 927, 77 S.Ct. 1386, 1 L.Ed.2d 1439; Cooke v. State, 164 Tex.Cr.R. 320, 299 S.W.2d 143; Gorman v. State, 166 Tex.Cr.R. 633, 317 S.W.2d 744; Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3; Stratmon v. State, 169 Tex.Cr.R. 188, 333 S.W.2d 135.
Against this background this Court has held that the revocation proceedings need not be formal, Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589, and has on occasion relaxed the rules of evidence applicable to a trial on the merits. In Smith v. State, 160 Tex.Cr.R. 438, 272 S.W.2d 104, the uncorroborated confession of the probationer was held sufficient to sustain revocation. In Dunn v. State, supra, it was held that former Article 718, Vernon’s Ann.C.C.P., 1925 (now Article 38.14) providing that a “conviction cannot be had upon the testimony of an accomplice unless corroborated” has no application to a revocation of probation hearing. See also Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566; McDonald v. State, Tex.Cr.App., 393 S.W.2d 914; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165. In each of these cases, unlike the case at bar, the accomplice witness was present at the time of the crime, was an eye witness thereto, and his testimony made out a complete case against the probationer. And in Hulsey, supra, the accomplice’s testimony was fully corroborated. The majority fails to note this difference.
Since the earlier decisions of this Court concerning the nature of the revocation proceedings, it is now clear that while a state is not constitutionally required to pro*60vide for probation and revocation proceedings as a part of its criminal process anymore than it is required to provide for appellate review, but when it does, then due process and equal protection of the law is fully applicable thereto. Douglas v. People of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. See Hoffman v. State, 404 P.2d 644 (Alaska) ; People v. Price, 24 Ill.App.2d 364, 164 N. E.2d 528; Williams v. Commonwealth, 350 Mass. 732, 216 N.E.2d 779; Blea v. Cox, 75 N.M. 265, 403 P.2d 701. See also this writer’s original dissent in Crawford v. State, Tex.Cr.App., 435 S.W.2d 148. Cf. Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620.
And certainly now it is well established that revocation of probation hearings are a part of the criminal law process “where substantial rights of a criminal accused may be affected” and to which federal constitutional standards are applicable. Mempa v. Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L.Ed.2d 336; McConnell v. Rhay and Stiltner v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Crawford v. State, supra; Eiland v. State, Tex.Cr.App. 437 S.W.2d 551.
The majority has today diluted the standards applicable to revocation proceedings and I regret the extension of the rule first announced in Dunn to a case where the uncorroborated accomplice witness’ testimony does not make out a complete case and there is no other evidence, direct or circumstantial to connect the probationer with the alleged violation. While the accomplice’s testimony may not leave the appellant free from the suspicion of guilt, it fails to show his guilt to a moral certainty so as to exclude all reasonable doubt. And this is so because where the accomplice witness’ testimony does not make out a complete case the rule of circumstantial evidence is still applicable.
While there is no right to either the court’s or the jury’s grace, once granted, probation should not be arbitrarily withdrawn by the court and the court is not authorized to revoke without having found the probationer has violated conditions of his probation. Wozencraft v. State, Tex.Cr.App., 388 S.W.2d 426. The burden of proof is upon the State, Zane v. State, Tex.Cr.App., 420 S.W.2d 953.
Believing that such burden has not been sustained and that the court abused its discretion in revoking probation, I dissent.
. In such sentence the court found that the appellant had violated his probation in the following words: “[S]aid Defendant on or about March 4, 1969 did enter upon the premises of Mobil Oil Corporation, without the consent of Mobil Oil Corporation, with intent to steal any mercury from and out of any gas meter by or through which the flow, movement or pressure of gas is measured or regulated.”
. Neither of the stipulations mentioned contained a waiver by the appellant of the appearance, confrontation and cross-examination of the witnesses.
. It is interesting to note that Section 2 of Article 1436b, supra, provides: “ ‘Mercury’ as that term is used herein means the common mineral known by that term not in combination with any other liquid, fluid or mineral."