Gray v. State , 24 Tex. Ct. App. 611 ( 1888 )

White, Presiding Judge.

Appellant was charged, tried and convicted in the lower court for the theft of money over the value of twenty dollars, the property of one Otto Oldham. As made by the evidence the case was one of theft of property which «had been lost by the owner.

There is but one bill of exceptions in the record. Defendant proposed to introduce as a witness in his behalf one Haney Gray, to whose competency the district attorney objected because the said witness was indicted in the district court and was being prosecuted for receiving and concealing the same money stolen by defendant and for which he was on trial, knowing it to have been stolen; and in support of the objection produced the indictment. The court sustained the objection and excluded the witness.

Our statute expressly provides that “persons charged as principals, accomplices or accessaries, whether in the same indictment or different indictments, can not be introduced as witnesses for one another.” (Code Crim. Proc., art. 731.) Under repeated decisions of this court, receiving stolen property knowing it to be stolen is a separate, distinct and substantive offense from theft, and a party under an indictment for theft can not be prosecuted and convicted for receiving stolen property knowing it to have been stolen. (Penal Code, art. 743; Brown v. The State, 15 Texas Ct. App., 531; Gaither v. The State, 21 Texas Ct. App., 527.)

Opinion delivered February 1, 1888.

There is no claim that Nancy Gray was a principal or an accomplice in the theft. (Penal Code, arts. 74 and 79.) She was defendant’s mother, as shown by the evidence, and, though the crime with which she was charged would come near to bring her within our statutory definition of an accessary (Penal Code, art. 88), she was not and could not be an accessary in the crime on account of the fact that she was defendant’s mother. It is expressly declared by statute, that “relations in the ascending or decending line by consanguinity or affinity can not be accessaries.” (Penal Code, art. 81, sub div. 2.)

If she was not charged as a principal, accomplice or accessary in the theft, then she was a competent witness. We think it clear that she was not so charged, and that the court erred in holding her incompetent.

The judgment is reversed and the cause is remanded.

Reversed and remanded.