It is conceived that a conviction can be sustained alone upon the existence of facts in evidence which meet the measure of the law defining accomplice testimony in exhibiting evidence which tends to corroborate the statement of the principal offenders that they were advised by the appellant to commit the burglary. The offense of which the appellant is charged — that of an accomplice — is unlike that of a conspiracy. The nature of a conspiracy is such that the offense is committed by the agreement. One, therefore, who is charged with a conspiracy, can be convicted upon proof sufficient to corroborate the testimony of an accomplice going to show that the conspiracy was made and that the accused was a party thereto. The conspiracy is the offense, not the consummation of the subject of the conspiracy. One charged as an accomplice, however, by advising the commission of a subsequent offense in advance of its commission, does not become an accomplice until the substantive offense is committed; that is to say, if in the present case the appellant advised the burglary, he would not be guilty as an accomplice unless the burglary was committed. It therefore follows that the law demands that there be evidence sufficient to corroborate the statements of the accomplices that the appellant was their adviser.
It was shown by the testimony of the perpetrators of the burglary that they committed the offense. That a burglary was committed was also shown by other testimony. Corroboration of the testimony of Frazier and Dyer that they committed the burglary is made by the witnesses Connolly and Parker, and its sufficiency is not open to question. The accomplices claimed that soon after the burglary they delivered the fruits of the crime to the appellant. The evidence shows that the fruits of the crime were found in the possession of the appellant soon after the offense of burglary had been committed. *Page 232 Upon the finding of the stolen property in the possession of the appellant, he made no explanation of his possession of it. If he had been charged with the burglary, his unexplained possession of the recently stolen property would have been sufficient to convict him of the burglary. According to the accomplices, the appellant advised in advance of the commission of the burglary that he would buy the fruits thereof. Part of the stolen property was found in the appellant's possession at his house, where, according to the accomplices, it was placed at night upon the direction of the appellant and with his assistance. Other than that made by the accomplice witnesses, there is no explanation of the presence of the stolen property in the possession of the appellant. The silence of one upon the discovery of property recently stolen, in his possession and under his exclusive control, has been held in many cases to justify the presumption that the stolen property came unlawfully into the hands of the accused. See Branch's Ann. Tex. P. C., p. 1332.
With the foregoing remarks, we concur in the affirmance of the judgment.
ON APPELLANT'S MOTION FOR REHEARING.