This case was affirmed upon a previous sitting of this court in a short opinion wherein we reviewed the only two insistences made by appellant in his motion for a new trial. The first contention was that the offense was not committed within four hundred yards of the county line of Lavaca County. The evidence clearly shows this is not correct. It was within one hundred yards. The evidence shows that appellant and Pete Dunn, and a boy who was accompanying appellant named Hoffernik, were in the town of Yoakum the night the animal was stolen, and Dunn accompanied appellant to the wagon yard where appellant's horses were. When they reached said place, appellant asked Dunn to assist him in catching the horse in question, which he did, appellant stating that it was his horse. After the horse was caught Hoffernik, the Bohemian boy, got on same, and Dunn assisted appellant to hitch up his horses, appellant being quite drunk. Then appellant told Dunn he would give him $1.50 to drive the wagon for him out of the corporate limits. This the witness did, the boy having preceded them a short while on the pony that was stolen from the prosecuting witness in this case. When they reached the edge of the corporation, Dunn got out of the wagon, appellant giving him $1.50 for his services, and the boy, Hoffernik, gave Dunn $1 and appellant gave Dunn the remnant of a bottle containing a small quantity of whisky. The witness Dunn swore he did not know whose animal it was that he assisted appellant in taking; that he thought it was appellant's animal, and as far as this record shows there is no evidence showing that the witness Dunn is an accomplice, except the facts above detailed showing the receipt of the money, the fact that the animal was taken at night, and the further fact that Dunn lived in the same town where the animal ranged around the common. The court submitted the question as to whether Dunn was an accomplice to the jury at the insistence of appellant, telling the jury, in substance, that if the witness Dunn is an accomplice, the jury must believe his testimony is corroborated by other evidence tending to connect defendant with the commission of the crime before they can convict. There is no complaint of the charge, but the sole insistence in the motion for a new trial is that the evidence does not support the verdict. The witness Dunn testified not only that he assisted in taking the particular animal belonging to prosecuting witness, as stated above, but that he identified the animal in the town of Yoakum on the day of the trial as the animal that he had assisted appellant in taking. Now, does the evidence support the verdict? The court had *Page 59 told the jury, as stated, not to find appellant guilty upon the testimony of Dunn if he was an accomplice unless his testimony was corroborated. The jury found appellant guilty, and the only just and legal inference from said fact is that the jury decided in the first instance that, Dunn not being an accomplice, there was sufficient testimony to support the verdict, and this conclusion is irresistibly forced upon us by virtue of the fact that there is no testimony corroborating said Dunn. If it was an undisputed fact, or rather if the evidence was undisputed that Dunn was an accomplice, and the court had so charged, then we would have appellant's question before us, but here, according to the evidence, we have a controverted question as to whether or not the witness Dunn is an accomplice. We have the jury finding appellant guilty on his testimony. If we believe the testimony for the State on the question of accomplice, Dunn is not an accomplice. The testimony for the defendant suggests that he was, and under a long line of authorities of this court we cannot review a controverted question of fact. This being true, we hold that the evidence is sufficient to support the verdict, and the motion for rehearing is therefore overruled.
Overruled.