The State has filed a motion for a rehearing in this cause, citing instances wherein it is claimed that the testimony of Melvin Williams, the confessed accomplice, is corroborated to such an extent that it tends to connect appellant with the commission *Page 414 of this offense. About the only corroborating circumstance, if such it can be called, we think, is the finding of a flashlight at or near the place where the accomplice said he thought one was lost. The witness Williams testified relative to the flashlight:
"I don't know exactly whether the defendant Shucks McCarty lost a flash light over there where we loaded these cattle that night. I knew about one getting lost over there in that corner where we loaded these cattle. I talked to Coyt Tuggle."
We are not impressed with the argument that the finding of such flashlight, not positively identified as belonging to appellant, was sufficiently strong enough to say that it evidenced the presence of appellant at the scene of the theft and tended to connect appellant with this theft outside of the evidence of the accomplice.
We are doubtful concerning the identification of the cattle sold at Fort Worth as being the same cattle lost by Mr. Yarbrough. They were merely described as three white faced cattle weighing approximately four hundred pounds each. The owner testified that he lost four heifers and nine calves, all white faced cattle, all unbranded, weighing about four or five hundred pounds; that they all had the pink eye, and he was treating them for such. The man who inspected these cattle that appellant received a check for, testified that there were three white faced cattle; he had no note of their weight; he did not think they had the pink eye, and he noted no marks nor brands thereon. The man who bought these cattle at Fort Worth testified that he bought one calf and two heifers; that the calf weighed 410 pounds, and the heifers together weighed 958 pounds. He never saw the cattle, but the sale slip did not evidence any docking for the pink eye or other damage.
We do not think this meager identification is sufficient to show that the cattle lost by Mr. Yarbrough were the same cattle sold at Fort Worth for which appellant received the money. In the event of another trial the testimony as to the identity of the three head of cattle sold at Fort Worth should be strengthened if possible.
We think this cause was properly decided in our original opinion, and the State's motion will therefore be overruled. *Page 415