The opinion
*445
OH BEHEABIHG.
June 18, 1913.
PRENDERGAST, Judge.
In his motion for rehearing appellant, by his attorneys, expressly states that whatever might be their views touching the matters discussed and decided in the original opinion, they do not urge any error therein or rehearing thereof. But appellant presents and urges two questions only, which he claims were not referred to in the original opinion.
The first- of these questions is that error was committed by the lower court refusing to permit him to ask the State’s witness Fletcher Howard, and require him to answer, as set up in the thirty-seventh bill of exceptions. We will here state this bill. After the formal part of “Be it remembered,” etc., the bill is:
“The court refused to permit counsel for the defendant, on cross-examination of said witness, Fletcher Howard, to ask said witness if he had ever committed robbery, and was confined by the court in his cross-examination of witness, to inquiries to thefts and burglaries, because said inquiry was a proper one, was tending to impeach said witness, Fletcher Howard, and the defendant expected to prove and could have proven by said Fletcher Howard, that he had committed many robberies and had been indicted for the offense of robbery, to all of which the. defendant then and there excepted at the time, and now tenders this his bill of exceptions and asks that the same be approved, signed and filed as a part of the record in this case.”
The court, in allowing this bill, qualified it with this explanation:
“The court allowed the defendant to ask this witness about all indictments against him and also allowed defendant to ask him about thefts and burglaries, these being involved in the system and contract he was testifying about. The court did refuse to allow him to be cross-examined as to whether he was guilty of robberies, and other extraneous crimes which were in no wise connected with the offense charged, nor involved in its contract and system of the Kaufmans and this' witness.”
By all of the decisions of this court this bill is wholly insufficient to require this court to consider the question attempted to be raised. Conger v. State, 63 Texas Crim. Rep., 312 , and James v. State, 63 Texas Crim. Rep., 75 . But suppose the bill was sufficient to require us to consider it. Taking the whole bill and the qualification thereof, it expressly shows that the court allowed the defendant to ask this witness " “about all indictments against him.” So that the statement in the bill, that he expected to prove by the witness that “he had been indicted for the offense of robbery,” was not true as a matter of fact. The court, as stated, stated that he allowed him to ask the witness about all indictments against him.
The other feature of the bill shows that he wanted to impeach the witness by proving by him “that he had committed many robberies,” not that he had been indicted or convicted of robbery, but to prove that he
*446
was guilty of an independent crime without showing an indictment or conviction therefor.
Mr. Branch, in his Crim. Law of Texas, in section 868, lays down the correct rule in this language: “Mere accusations against, or evidence of particular acts of misconduct, are not admissible to affect the credibility of a witness. A witness can only be impeached as to other offenses by showing that he has been
legally
charged with a felony, or a misdemeanor imputing moral turpitude.” And cites a large number of decisions of this court which clearly support his text. It is unnecessary to cite them here. We have many times recently had occasion to thoroughly investigate the law and our decisions on this subject. In the recent case of Wright v. State, 63 Texas Crim. Rep., 429 , we held in effect this: “There is no question but that if a witness was offered for the purpose of proving as a matter of fact that the witness was guilty of specific offense involving moral turpitude, or of the grade of felony, where no legal proceeding had been instituted'against him, such testimony would not be admissible. Conway v. State, 33 Texas Crim. Rep., 327 .” And we also held in that case, “that where a party is charged by complaint only, and sufficient time has elapsed for an indictment, and none has been preferred, that the mere fact of the arrest of a party on a complaint is not legal testimony to go to his impeachment.” This bill of appellant, therefore, even if considered, presents no error.
The other question urged in appellant’s motion for rehearing is, as we understand it, that th.e evidence in this case shows that appellant was an accomplice to the theft of the property with which he was convicted of fraudulently receiving and concealing, knowing it to have been stolen, and, therefore, was improperly convicted for receiving and concealing the property. Because he calls attention to two grounds only in his motion for new trial, which he claims raised the question. In the first of these grounds he quotes as follows: “The evidence, if same establishes any guilty connection of the appellant with the property described in the indictment, showed his connection with same to be that of accomplice and not as a principal offender.” It is not stated in this, as is seen, with which particular feature he is an accomplice and not a principal offender,—whether the theft of it, or the receiving and concealing it. But the other ground of his motion for new trial, which he quotes, is to the effect that the evidence “would not show this defendant guilty of either receiving or concealing the property but would show him guilty as an accomplice in the commission of the offense of theft of the property.” He couples these two grounds as raising the question he urges, so that, as stated above, as we understand, his contention is that the evidence in' the case shows that he was an accomplice to the theft and not guilty of receiving and concealing the stolen property. This is further borne out by the evidence in the record which appellant quotes, which tends, even from his -theory, to show that he was an accomplice to the theft of the property only.
We have carefully considered appellant’s motion and his brief and
*447
argument thereon, and the authorities cited. In discussing this question we will not cite the cases to any extent, because the principles that we lay down are so well and thoroughly established that authorities need not be collated.
The offense of theft of property is an entirely distinct and separate offense from that of an accomplice to the theft of such property, and also an entirely separate and distinct offense from receiving and concealing the same property. The theft of it is one offense, an accomplice to the theft of it is another offense and the receiving and concealing it, knowing it to be stolen, is another offense. An accused can not be convicted for either of the offenses upon an indictment for one of the other offenses. In other words, an accused can not be convicted as an accomplice to the theft of the property, nor. for receiving and concealing the stolen property, upon an indictment for the theft of it. Neither can he be convicted for the theft of it, nor receiving and concealing it upon, an indictment as an accomplice to the theft of it. Nor can he be convicted of the theft of it, or as an accomplice to the theft of it upon an indictment for the receiving and concealing it. The principle is clearly illustrated by the opinion of this court through Judge Hurt, in McAfee v. State, 14 Texas Crim. App., 668, thus:
“A steals a cow. B, with knowledge of the theft, buys the cow from A. Shall we say,
thereupon,
B stole the cow? Again, A steals a cow. B, with knowledge of the theft, buys from A. Are we not forced to say,
therefore,
B did not steal the cow, this being the real fact of the case?
“Theft is the fraudulent
taking
of property
from
the
possession
of the owner, or some one holding possession for him.
There must he a, taking,
and no subsequent connection with the stolen property, be it in
good
or
had
faith, honest or fraudulent, will constitute theft.
“If the evidence fails to connect defendant with the
taking,
unless by recent possession, this recent possession may be accounted for by proof of purchase, whether in good or bad faith; and defendant may in
law
urge the purchase, notwithstanding he had full knowledge that the seller had stolen the property. It is true that this would be receiving property knowing that it had been stolen, for which the purchaser, under an indictment charging
this offense,
could be tried and convicted. But appellant in the case at bar was tried for and convicted of
theft.
It was this charge, this offense, he was called upon to meet, and no other; and he had the right to meet and defeat the charge of theft with any matter which would secure that purpose, although his guilt of another offense should be developed.” This principle has been so many times and so uniformly held by this court we do not cite any of the other cases, though they are quite numerous. What is said in the McAfee case, just above quoted, is equally applicable and might be used as a complete illustration of each of the offenses herein above specified, towit, that of an accomplice to the theft and that of receiving and concealing the stolen property, knowing it to be stolen.
*448
Again, no person can be an accomplice without there is a principal, and in order to convict, as an accomplice, even upon an indictment as an accomplice, the proof must show that there is a principal and that the principal is guilty of the main offense. In this instance, that of theft. So, in the offense of receiving and concealing stolen property. If a party were indicted as an accomplice to the receiving and concealing the stolen property, there must be a principal and that principal must be guilty of receiving and concealing it before the accomplice could be convicted as an accomplice to receiving and concealing it.
While the indictment in this case has five separate and distinct counts, as stated by appellant in his motion for rehearing, only one was submitted to the jury. The others were excluded from any submission. The one which was submitted, is the one only under which appellant was ■convicted. So that the case is treated as if only that one count had been in it. The others can not be used for any purpose.
The evidence in this case cited by appellant in his motion for rehearing in no way intimates or tends to intimate that appellant was an accomplice to the receiving and concealing of his stolen property. He alone is shown in it to be the principal in the receiving and concealing of this property. It is unnecessary to take up and collate the evidence. As we said in the original opinion: “We are clearly of the opinion that the evidence in this case justified the jury to believe that appellant knew that these goods were stolen by Howard and his associate and that ho directed that they should be delivered to him by placing them in his barn, which was done. This Vas a receiving by him in the eye of the law/ It was not necessary under the law that he should personally be present, nor manually receive the property under the circumstances of this case.” In the original opinion we also cited and quoted from the ■authorities which clearly showed that it was not necessary for the appellant to have been personally present and manually received and seen the property when it was delivered at the time and place which he designated. As stated above, appellant in his motion for rehearing did not contest any of the questions decided in the original opinion, and while not expressly assenting thereto, clearly impliedly did. But, however that may be, we are of the opinion that the evidence which the jury believed, clearly established that appellant was guilty of receiving and concealing the stolen property as a principal, as charged in the indictment, and not as an accomplice to such receiving and concealing. It might be that appellant could have been prosecuted and convicted, under the evidence' cited by appellant, as an accomplice to the theft of the property, instead of having received and concealed it, but he has not the choice. The State has the choice of which crime originating out of the transaction it will prosecute him for. “One answerable for a criminal transaction may be holden for any crime, of whatever nature, which can be legally carved out of his entire offending. He is not to elect, but the prosecuting power is. If the evidence shows him to be guilty of a higher offense than he stands indicted for, or a lower, or
*449
of one differing in nature, whether under a statute or at the common law, he can not be heard to complain,—the question being whether it shows him to be guilty of the one charged.” 1 Bish. New Crim. Law, sec. 791; Whitford v. State, 24 Texas Crim. App., 489; Grisham v. State, 19 Texas Crim. App., 504. “A party may, in a criminal proceeding, be held to answer for any offense, great or small, which can be legally carved out of the transaction.” Jackson v. State, 43 Texas, 421 . “The prosecutor had a right to carve as large an offense out of this transaction as he could, yet must cut only once.” Quitzow v. State, 1 Texas Crim. App., 47. It is needless to cite the many other authorities to this effect.
The motion for rehearing is overruled.
Overruled.