It is insisted by counsel for appellant that if the evidence is sufficient to convict appellant of any offense it shows him to be guilty as a principal in the theft of the sheep and therefore he could not be guilty as a receiver of them. It is urged that our original opinion is in conflict with Middleton v. State,86 Tex. Crim. 307, 217 S.W. 1046, and McInnis v. State,122 Tex. Crim. 128, 54 S.W.2d 96. Appellant's proposition is based upon the theory that there was a conspiracy to steal the sheep which had been entered into by appellant, Huffman and Foley, and that the sheep were stolen during the existence of the conspiracy and in furtherance of the common design of all, and therefore, if appellant is guilty it is as a principal. In determining the question it must be borne in mind that the mere fact that a conspiracy to steal is shown does not make all parties to the conspiracy principals in the theft. Branch's Ann. Tex. P.C., Sec. 700, p. 359; Burow v. State, 85 Tex. Crim. 133; 210 S.W. 805; Mitchell v. State, 44 Tex.Crim. Rep.,70 S.W. 208; Sessions v. State, 37 Tex.Crim. Rep.,38 S.W. 605;
Bell v. State, 39 Tex.Crim. Rep., 47 S.W. 1010; O'Quinn v. State, 55 Tex.Crim. Rep., 115 S.W. 39. Conceding that appellant told Huffman and Foley to go steal the sheep from Pepper, gave them directions as to what route to follow in bringing them to appellant's pasture, and received them after they reached there, still he would not be a principal in the theft unless present when they were taken, or was doing something at the time of the theft in furtherance of the common design. There is no pretense that appellant was present when Huffman and Foley took the sheep from Pepper's pasture, and no evidence is discovered indicating that he was at the time doing anything in furtherance of the taking.
Reverting to the Middleton case (supra) relied on by appellant, we note that Middleton was being prosecuted as a principal for the murder of Mary Lewis. Osment did the actual killing, but testified that Middleton had taken the eleven-year-old girl of deceased away from the scene of the killing to keep her frombeing a witness thereto, and to avoid having to kill her also. In the course of the opinion it is said: "There is no doubt in our minds on the proposition that one who purposely removes a possible or probable witness for the purpose of preventing the witnessing by such person of the proposed crime, and who is keeping such person away, is within the definition of a principal, as contained in article 76 of our Penal Code, * * *" After stating the facts it is further said in the opinion: "* * * These facts clearly show a conspiracy between Osment and appellant, and for so long as same continued, and until its consummation, the acts of each in furtherance of the common design were the acts of all, and each would be a principal in any crime committed in the execution of such design. We think the trial court did not err in submitting the law of principals to the jury."
It is upon the language last quoted that appellant relies in the present case. The language should be construed in relation to what Middleton was doing at the time of the murder. It is sometimes difficult under the facts to determine who are principals in the offense of theft. The rules which control in distinguishing a principal in such case from an accomplice in the theft, or from a receiver of the stolen property were pretty definitely settled in the case of Smith v. State, 21 Tex. App., 107. The question was reviewed in Burow v. State, 85 Tex. Crim. 133,210 S.W. 805, in which the facts were as follows: Burow had agreed with certain Mexicans that they should steal cattle and bring them to Burow's pen; that Burow
would pay them a stipulated sum for the cattle. At the time the cattle were taken Burow was not present, and was doing nothing in furtherance of the design. It was not contemplated that the Mexicans should have any interest in the cattle after they delivered them to Burow, and received their pay. Burow was convicted of theft of the cattle. Judge Morrow, writing on motion for rehearing, said: "The rule laid down in the leading case mentioned (referring to Smith v. State, supra) is that, where persons enter into a conspiracy to commit the crime of theft of property contemplating that one or more of the conspirators shall take the property from the possession of the owner and deliver it to another conspirator not present at the time of the taking, to be by him converted, and the proceeds distributed among all, and that when this conspiracy is carried into effect by the taking of the property from the possession of the owner by one or more of the conspirators delivering it pursuant to agreement to another to be converted by him, pursuant to the previous agreement, to the end that the proceeds may be distributed, all are principals within the meaning of the statute."
It was held that the facts in Burow's case did not bring it within the scope of the Smith case, and a reversal was ordered because Burow was not shown to be the principal. The facts are so similar to those in the instant case that the application of the same rule is obviously called for. Huffman and Foley had no interest in the sheep after appellant paid them so much per head for delivering them to him; there was to be no sale of them by appellant with a division of the proceeds among the three. Appellant could do with the sheep as he pleased.
The Burow case was followed in Kolb v. State, 88 Tex. Crim. 593,228 S.W. 210. (See opinion on rehearing.) We think McInnis v. State, 122 Tex.Crim. Rep., 54 S.W.2d 96, upon which appellant relies in his motion for rehearing is against him instead of supporting him. There the conviction was for receiving stolen property, but the facts showed McInnis to be a principal in the theft under the holding in Smith's case (supra) and others mentioned, because after the property there involved was stolen it was turned over to McInnis who was to dispose of it, and Haskett (the actual taker) was to receive a percentage of the proceeds.
The other point urged by appellant in his motion is that the argument of the district attorney complained of in bill of exception No. 3 was a reference to the failure of appellant to testify. It was held in Boone v. State, 90 Tex. Crim. 374, 235 S.W. 580, that the statute forbidding allusion to the failure of accused to testify (Art. 710, C.C.P., 1925) was not infringed when the language used in argument might be construed as an implied or indirect allusion to such failure, but that to come within the prohibition of the statute the implication must be a necessary one. The rule has been frequently followed. In Kennington v. State, 49 S.W.2d 776, the cases are cited. Huffman and Foley testified that on a certain occasion an agreement was had with appellant. Betty Andrews, appellant's own witness, testified to such agreement, but varying in terms from that claimed by Huffman and Foley. Having regard to the record, we think the argument complained of cannot be said to be a "necessary" allusion to the fact that appellant did not testify as a witness.
Believing our original opinion made proper disposition of the case, the motion for rehearing is overruled.
Overruled.
MORROW, P.J., absent.