The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for two years.
The state relied largely upon the testimony of an accomplice witness. The corroborative evidence is meagerly sufficient. However, the testimony of the accomplice went further than to connect appellant with the commission of the offense, and, if believed, showed appellant's guilt. In submitting an instruction on the subject of accomplice testimony the court advised the jury that they could not convict appellant on the testimony of the accomplice alone unless they first believed that his testimony was true and connected appellant with the offense charged. Continuing the charge, the court required the jury to believe that there was testimony corroborative of the testimony of the accomplice tending to connect the appellant with the offense charged. In connection with said charge, the court failed to require the jury to believe from all of the evidence beyond a reasonable doubt that appellant was guilty. Appellant timely and properly excepted to the charge. The court was in error in using the word "alone." Under the facts, the charge is erroneous in advising the jury that they must believe that the testimony of the accomplice connected the appellant with the commission of the offense. The court should have required the jury to believe that the testimony of the accomplice showed the appellant to be guilty of the offense. Again, the jury should have been required, in connection with the charge on the testimony of the accomplice, to find from all of the evidence beyond a reasonable doubt that the appellant was guilty. In view of the matters mentioned, we are constrained to hold that reversible error is presented. See Grant v. State, 132 S.W. 350.
It is shown in bill of exception No. 1 that after the offense had been committed an officer went to appellant's place of business *Page 134 in an effort to secure certain checks which furnished incriminating evidence. Appellant was not present, and, according to the testimony of the officer, he asked appellant's partner for the checks and was unable to secure them. We think this testimony was inadmissible. As to appellant, it was hearsay.
The judgment is reversed and the cause remanded.
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.
ON MOTION FOR REHEARING.