Newsom v. State , 143 Tex. Crim. 583 ( 1942 )

The State has filed an elaborate motion for rehearing in which it contends that we erred in holding the State's witness Finley to be an accomplice as a matter of law. We have again reviewed his testimony, the material and pertinent parts of which are correctly set out in the original opinion, and are firmly convinced that Finley, by his testimony, has shown himself to be an accomplice as a matter of law.

In the case of Johnson v. State, 58 Tex.Crim. R., a question similar to the one under consideration was presented. In that case it appears that some one burglarized a house belonging to J. A. Potts and took therefrom a harness, which was sold to Henry McCormick for the sum of $2.00. McCormick later sold the harness to Sam Johnson. McCormick testified that at the time he bought the harness for $2.00 he knew that it was a $25.00 or $30.00 set of harness; that he did not ask the party where he got the harness. He also testified that he had been working for the Woodward Carriage Company for quite a number of years and was familiar with the value of harness of the kind and character in question; that Mr. Woodward sold such harness for $25.00 or $30.00. He denied, however, that he knew at the time he purchased the harness that it was stolen. The court held that the question as to whether McCormick was an accomplice should have been submitted to the jury even though he denied that he knew the harness was stolen.

In the instant case, Finley said he became suspicious that the chickens were "hot" and thought that they had been stolen. If he knew or thought that the chickens had been stolen but notwithstanding such knowledge he purchased them, he would be guilty of receiving stolen property and was an accomplice as a matter of law. See Cummings v. State, 87 Tex.Crim. R.; Chandler v. State, 89 Tex.Crim. R., 231 S.W. 107.

Believing that the case was properly disposed of on the original submission, the motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.