Full opinion text
LATTIMORE, J. Conviction for receiving and concealing stolen property of the value of less than five dollars ; punishment, a fine of fifty dollars. The complaint and information contained two counts; one charging theft, and the other the receiving and concealing of the same property, knowing it to have been stolen. Both counts were submitted to the jury in the charge of the court. This may have been unfortunate. The testimony makes out a clear case of theft, in which event the accused could not be convicted for receiving and concealing. The two offenses are separate and distinct offenses in law. McAfee v. State, 14 Tex. App. 668. Many other authorities announce the same conclusion. The state relies for conviction upon appellant’s written confession. In same, he describes a trip made by himself and two others to the place where the motor meter, involved in the instant prosecution, was stolen, and also a wheel, tire, and tube were stolen from an automobile, and certain harness. There is no question but that appellant was present and participating as a principal offender at the time of each theft. The parties w¿nt to the high school building in appellant’s car’ and, as he states in his confession, while there Howard Mays stole the motor meter¡ off a car; the taking being known to appellant. The parties left the school building together and went to New toastie, Tex., where they separated, appellant keeping, the iiutomobile-wheel, the tire, and the motor nMter, and the others taking the harness. W8 quote from appellant’s confession: “I took the automobile wheel and tire and motor meter on with me. Howard and Harold Mays took the harness to Mr. Skaggs as their part ¿f what we stole the night before, I took ttle tire, wheel and motor meter as my part.” In another place in the confession appellant said that the tire, motor meter, etc.; found at bis home by the officers “is the same property that I helped steal in Wood-son, Texas, last Thursday night.” It thus appearing without dispute that appellant participated in the stealing of the motor .meter, in question, under all our decisions he wo.uld be guilty of theft of same, and therefore cannot be convicted for receiving and concealing the same. Sparks v. State, 108 Tex. Cr. R. 867, 300 S. W. 938; Moore v. State, 83 Tex. Cr. R. 302, 203 S. W. 51; Allen v. State, 76 Tex. Cr. R. 416, 175 S. W. 700; Pollard v. State, 33 Tex. Cr. R. 197, 26 S. W. 70. In this condition of the record, it becomes necessary to order a reversal of the case, and it is accordingly so ordered.