I wrote an opinion reversing the judgment, but my brethren would not agree with me and filed their opinion written by Judge Harper affirming.
I do not care to enter into any lengthy statement of the facts or reasoning why I can not concur. The State relied upon the testimony of the accomplice, Foster, for a conviction. Eliminating his testimony, there is no evidence which shows that appellant was ever in possession of the alleged stolen property. Even the accomplice does not undertake to place defendant in possession of the property. The only evidence from such accomplice is that appellant asked him on one occasion what he and Patrick did with the tires, the alleged stolen property, stating that he had a half interest in them. There was a conversation between the accomplice, Foster, and appellant to the effect that appellant told Foster to see Patrick, whom the State claims assisted in stealing the tires, who would talk to him. If all this be treated as incriminating, it does not connect appellant with the taking, nor does *Page 284 any statement, as I understand the testimony, from any source, the accomplice or otherwise, so connect appellant. The State does not undertake to show that appellant was ever in possession of the property. He was in no way connected with the original taking otherwise than the above statements of this accomplice, and no statement testified by Foster placed appellant in possession of the tires at any time or place. He excludes by his testimony the fact he ever saw appellant in possession of the property. Appellant could be half interested in the tires in many ways without being a principal. It was not necessary that he be connected with the taking as a principal to be interested in the proceeds of the sale or disposition of the tires. Foster testified that he was in possession of the tires and sold some of them. He was seeking to avoid responsibility. The accomplice is not corroborated, nor sought to be corroborated as to the alleged statements of appellant. Nor did appellant make a statement that he took or assisted in taking the tires even under the evidence of the accomplice. It has been held that where a crime is shown the accused may be connected with it by his confession, but in order to constitute this confession evidence of guilt of theft in this case it must show that he participated in the taking, because the indictment only charged him as a principal. It has also been held that a confession must connect, as in this case, the party making the confession with the taking, for he can not be the thief unless he was so connected. If appellant made the statement to this accomplice of having half interest, this does not show he took the property, and the accomplice is not corroborated even as to that statement. From any viewpoint, there is no fact corroborative of the accomplice that appellant made such statement. Extra-judicial verbal confessions are not sufficient to convict even when the taking is shown when that confession comes alone from the accomplice. Corroboration is necessary, and none was offered or introduced by the State. The testimony of Driver does not corroborate the accomplice as to the taking, even if it is corroborative of any fact criminating appellant in the matter. The court, in a general way, charged the jury that if appellant took the property he would be guilty as a thief. Without this being shown he could not be convicted underthis indictment. This was specifically called to the attention of the court in requested charge, which was refused. As before stated, however, the court in a general way informed the jury if defendant took the property, etc., he would be guilty, but the special charge called the attention of the jury to the law that it must be shown by evidence that he was connected with the original taking specifically, and was not only not given but a special charge was refused. In my judgment, this charge under the facts should have been given. This error is emphasized by reason of the fact that the court charged in regard to principals. If such charge be justified, then it was incumbent on the court to give the converse of the proposition, towit: the law applicable to the facts, if appellant was not connected as a principal and especially so under the facts of this case. This was the vital question of the case. If he was a principal *Page 285 and the facts showed it to the satisfaction of the jury, he should be convicted, but where the facts are as shown by this record, and there is no evidence showing that he was connected with the taking of the property, the court should have charged the jury that unless he was a principal they could not convict. The State must show this beyond a reasonable doubt by evidence. This matter was properly presented by counsel for defendant, and exceptions timely reserved to the charge and refusal to give the special requested instructions. For these reasons, without further elaboration, I can not agree to the affirmance. The judgment ought also to be reversed and the cause remanded for want of sufficient evidence to support the verdict.