Appellant urges that the trial court was in error in declining to instruct the jury that the testimony of G. B. Frazier and Eby Dyer relative to breaking and entering the burglarized building could not be used for the purpose of determining appellant's guilt as an accomplice, but could only be considered by the jury on the question as to whether Dyer and Frazier were guilty of the offense of burglary. It was pointed out in the original opinion that Dyer and Frazier testified in detail that appellant suggested to them the burglary of the house, the manner in which the entry should be effected, and the disposition to be made of the property taken from said house. Further, it was pointed out that these witnesses testified that they burglarized the house in the manner suggested by appellant and delivered to him the property taken therefrom. Part of the property taken from the burglarized house was found in appellant's possession. He made no explanation of his possession when first questioned, and did not testify on the trial. The witnesses Dyer and Frazier testified in person. Their version of the transaction did not come from confessions made by them, but from their lips as witnesses as they confronted appellant in the trial of his case. No declarations or admissions made out of court by said witnesses were introduced in evidence. Under the circumstances, the opinion is expressed that the exception to the charge was *Page 233 not well taken. In his brief appellant cites many cases supporting the proposition that the confession of the principal is admissible on the trial of the accomplice only to prove the principal's guilt, and must be limited in the charge of the court to the purpose for which it was introduced. See Branch's Annotated Penal Code, sec. 71; Aven by State, 177 S.W. 82. Manifestly, the cases relied upon by appellant are not applicable to the present situation.
The motion for rehearing is overruled.
Overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.