Opinion
No. 17675.
Delivered June 19, 1935. Rehearing Denied October 23, 1935.
1. — Theft — Evidence.
In prosecution for theft of meat chopping machine, evidence held sufficient to support conviction.
ON MOTION FOR REHEARING.2. — Theft — Accomplice.
In prosecution for theft of meat chopping machine, State's witness with whom accused left machine and sought to use same in payment for groceries, held, under the facts, not an accomplice as a matter of law, and trial court properly left question to jury as to whether said witness was an accomplice.
Appeal from Criminal District Court of Jefferson County. Tried below before the Hon. R. L. Murray, Judge.
Appeal from conviction for theft; penalty, confinement in the penitentiary for two years.
Affirmed.
The opinion states the case.
D. E. O'Fiel, of Beaumont, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction for theft; punishment, two years in the penitentiary.
Appellant was charged with theft of a meat chopping machine of the value of something in excess of one hundred dollars. He did not testify, nor did he introduce any evidence in his behalf. The State's testimony is sufficient to show the theft of the box containing the meat chopping machine, and its attempted sale to Mr. Modica by the appellant, who left the box containing the machine at Mr. Modica's place of business where it was recovered by the owner. The evidence seems to justify the conclusion of the jury.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.
The prosecuting witness Arterberry testified to the loss of a meat chopper of the value of $110.00. John Modica, a merchant, testified that the meat chopper was left in his store by the appellant. A detective later took the meat chopper from Modica's place of business. As the record is understood, Modica made no claim to the machine. He testified that appellant sought to use the meat chopper in payment for some groceries.
The motion for rehearing is based upon the contention that the witness Modica was an accomplice as a matter of law. That contention, it is thought, was properly rejected. The court, however, gave an adequate charge, leaving to the jury the question as to whether Modica was an accomplice or an accomplice witness.
Upon the record before us, we are constrained to overrule the motion for rehearing, which is accordingly ordered.
Overruled.