Findley v. State , 1964 Tex. Crim. App. LEXIS 978 ( 1964 )

ON APPELLANT’S MOTION FOR REHEARING

For the first time on rehearing appellant complains of the action of the court in refusing to charge that the witness Springer (referred to in the original opinion as appellant’s uncle) was an accomplice witness as a matter of law or in the alternative in failing to submit to the jury the question of whether or not he was an accomplice witness. This contention grows out of appellant’s assertion that Springer was an accessory to appellant in that he attempted to aid him in avoiding apprehension.

We shall discuss the facts more fully in connection with this contention. Appellant resided with Springer, however, he had another uncle, Marshall Findley, who resided somewhere in the vicinity. According to Springer, on the morning after the burglary Marshall told Springer that appellant and his companions had hidden some jewelry at his house and asked him to come and get the same because he was worried over the matter. Springer went and got certain items of jewelry from Marshall’s house and returned them to his own (where appellant resided). He stated that he complied with Marshall’s request because Marshall was ill and had seizures when he got excited, and because he did not want Marshall “to get in trouble about it.”

Sometime thereafter the officers inquired of Springer about the burglary, and he first told them that he knew nothing about it. This conduct would not make him an accessory. Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d 290, and Clark v. State, 261 S.W.2d 339, 159 Tex.Cr.R. 187. Subsequently the officers did find some of the jewelry in a coat pocket in the house where appellant and Springer resided. The record is not clear as to whether this was the result of Springer’s finally telling them the truth, or as the result of their own search.

We must now decide if this act of Springer in getting the jewelry from Marshall’s house and returning it to his own constituted an act which raised the issue of whether or not he was aiding appellant in avoiding apprehension, and thus an accessory to appellant and an accomplice witness.¹ Had he taken the jewelry from where appellant lived and concealed it at Marshall’s house or at some other place, then another question would have been presented, but here he brought the stolen property from its place of hiding and placed it in the house where appellant resided, and where the officers eventually found' it. We have concluded that this does not constitute an effort to aid appellant in avoiding apprehension, and therefore, hold that there is no evidence to raise the issue that Springer was an accomplice witness.

Remaining convinced that we properly disposed of this appeal on original submission, appellant’s motion for rehearing is overruled.

1 . “The Law of Principals, Accomplices and Accessories,” Vol. I, V.A.P.O., p. xiii.