Evans v. State , 152 Tex. Crim. 58 ( 1948 )

The testimony of the accomplice witness Roach showed that appellant approached him with the idea of stealing the cattle and selling them to the appellant, and that the theft and delivery of the cattle was in accordance with that idea.

Appellant insists that such testimony showed appellant guilty of a conspiracy to steal the cattle and in such a manner as to constitute him a principal to the theft of the cattle, thereby precluding his conviction of receiving and concealing stolen property.

That one may not be guilty of receiving and concealing stolen property who is guilty as a principal to the theft thereof is so well established as to render unnecessary the citation of authorities. Such rule, however, does not apply where the receiver of the stolen property is only a co-conspirator to the theft. Gammel v. State, 124 Tex. Cr. 328, 62 S.W.2d 139; Petty v. State, 128 Tex.Crim. R., 82 S.W.2d 965; Clark v. State, 131 Tex.Crim. R., 95 S.W.2d 1309.

The distinguishing feature in determining when one is a principal to the crime of theft rather than of receiving and concealing the stolen property lies in whether or not the conspiracy ended with the delivery of the stolen property. If so, the receiver and concealer of the stolen property was not a principal to the theft. On the other hand, if there remained some act to be performed by the receiver of the stolen property in furtherance of the conspiracy or common design, such as a sale of the stolen property and a division of the proceeds of the sale, then the receiver is so connected with the theft as to constitute him a principal. McInnis v. State, 122 Tex. Crim. 128,54 S.W.2d 96; Coy v. State, 131 Tex.Crim. R.,100 S.W.2d 1016.

The testimony of the accomplice does not bring the instant case within the rule last stated, for appellant, according to his testimony, paid him for the cattle upon delivery.

The conclusion is reached that the facts warrant appellant's conviction for receiving and concealing the stolen property.

Appellant's motion for rehearing is overruled.

Opinion approved by the Court.