property conveyed: Trice v. Kayton, 84 Va. 217; 10 Am. St. Rep. 836, and note; Baker v. Hunt, 40 Ill. 264; 89 Am. Dec. 346, and note; Backus v. McCoy, 3 Ohio, 211; 17 Am. Dec. 585, and note; Moore v. Johnson, 87 Ala. 220; Mygatt v. Coe, 124 N. Y. 212. The covenant of seisin for failure of title is broken at the time of the conveyance: Clement v. Bank, 61 Vt. 298. See extended note to Morse v. Garner, 47 Am. Dec. 570.

EVIDENCE-JUDGMENT. — ON THE TRIAL OF AN INDICTMENT FOR RECEIV ING PROPERTY knowing it to have been stolen, a judgment convicting and sentencing another person for stealing the same property, together with the indictment on which it was found, is admissible in evidence against the accused for the purpose of showing that such property had been stolen by such other person.

EVIDENCE. THE DECLARATION OF ONE WHO HAS BEEN CONVICTED of stealing property, that another person indicted for receiving it, knowing it to have been stolen, had no connection with the theft, and had bought the property in good faith and for value, is not admissible in favor of the latter.

EVIDENCE-POSSESSION OF STOLEN PROPERTY AS EVIDENCE OF GUILT. — It is error to instruct a jury that the possession of stolen property is a circumstance sufficient to warrant the presumption of guilt on the part of the person having such possession, if the evidence shows that such possession was recent, personal, exclusive, and unexplained. The instruction upon this subject should be, that such possession is a mere circumstance to be considered by the jury in connection with other evidence in the case in determining the issue of the defendant's guilt. INDICTMENT for theft, the second count of which charged the defendant with receiving stolen property knowing it to be stolen. After the prosecution had put in its evidence in chief, and the defendant his testimony in response, the state offered in evidence an indictment against defendant and three others for the theft of the same property, and a judgment convicting one of the others thereon. The court, against the objection of the defendant, permitted the indictment and conviction to be read in evidence. Defendant then offered to prove that

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the person so convicted, when the indictment was first served upon him, openly declared that the defendant had nothing to do with the theft, but bought the property, after the theft, in good faith and for value. The evidence of such declaration was excluded. The defendant, having been convicted, appealed. McCall and Britt Brothers, Charles Wheeler, Jo Hall, and N. P. Jackson, for the appellant.

W. L. Davidson, assistant attorney-general, for the state.

WILLSON, J. There are two counts in the indictment, the first charging the theft of a horse, and the second the receiving said horse, knowing the same to have been stolen. In support of the second count, to show that said horse had been stolen by another person than the defendant, and before defendant was found in possession of said horse, the state was permitted, over the defendant's objections, to introduce and read in evidence an indictment charging one Hill with the theft of said horse, and a judgment of conviction and sentence of said Hill for said theft. For the purpose for which this testimony was admitted we think it was relevant and otherwise admissible: Wharton's Crim. Ev., sec. 602. It afforded prima facie proof that the horse had been stolen by Hill at the time the defendant came into possession of it. That said testimony was admitted after defendant had closed his testimony, and was not in rebuttal of any testimony adduced by him, is not a valid objection on appeal, it not appearing that the trial court abused its discretion to the injury of the defendant in admitting said testimony. This testimony was, by the charge of the court, expressly limited to the purpose for which it was admitted, and the jury were told to consider it for no other purpose.

As to the testimony offered by the defendant and rejected, it was clearly inadmissible. It was in part hearsay, and in part irrelevant and immaterial.

There is ample evidence, we think, to warrant the instructions as to the law of principals in crime. That defendant and others acted together in the theft of the horse to such extent as to make them all principals in the theft is clearly shown by the testimony of the accomplice witness Shannon. Whether or not the testimony of the accomplice was suffi ciently corroborated to warrant a conviction was a question for the jury to determine, and the trial court properly and correctly submitted that question to the jury; and in doing so it was not only right, but was the duty of the court, to in

struct the jury in relation to the law as to principals. It is contended, however, by counsel for defendant that there is no evidence which corroborates the accomplice testimony, to the extent required by the law, and that the uncorroborated testimony of an accomplice cannot form the basis of an instruction from the court. We differ with counsel in his view of the evidence and of the law. We think there is evidence corroborating the accomplice testimony. That defendant was found in possession of the horse shortly after the same was stolen, is certainly a corroborating circumstance tending to connect the defendant with the theft. That he placed the saddle where Shannon could get it is another such circumstance. That he was in the town on the night the horse was stolen, but could not be found there on the next morning, and when seen a few days thereafter was five hundred miles distant from the place of the theft, are circumstances tending to connect him with the theft of the horse, and which in material matters corroborate said accomplice testimony.

We find the charge of the court free from error except in one particular. As to the circumstance of defendant's possession of the horse recently after the same was stolen, the charge is as follows: "The possession of property stolen is not positive evidence of guilt, but is a circumstance sufficient to warrant the presumption of guilt on the part of the person having such possession, if the evidence shows such possession was recent, was personal and exclusive, and unexplained," etc. This paragraph of the charge was excepted to by the defendant at the trial, and a bill of exception thereto was duly reserved. In Lee v. State, 27 Tex. App. 476, this court held a similar instruction erroneous, as being upon the weight of evidence. In the above-quoted paragraph the jury was told that the personal, exclusive, unexplained, and recent possession of the horse, after the same was stolen, was sufficient evidence to warrant the conviction of the defendant of the theft of said horse. The instruction should have been that such possession was a mere circumstance to be considered by the jury in connection with other evidence in the case in determining the issue of defendant's guilt.

Because of the above-stated erroneous instruction, the judg ment is reversed, and the cause is remanded.

CRIMINAL LAW - EVIDENCE RECORDS OF FORMER TRIAL AS EVIDENCE - Record of the conviction and sentence of a party is proper evidence on the trial of a prisoner for assisting that party to escape from prison: Murray

▼. State, 25 Fla. 528. And the records of the court are competent evidence to establish a former conviction of a felony: People v. Smith, 121 N. Y. 578. CRIMINAL LAW-ACCOMPLICES AS WITNESSES. The evidence of an accomplice must be treated by the jury with great suspicion: Cheatham v. State, 67 Miss. 335; 19 Am. St. Rep. 310, and note. See Mixon v. State, 28 Tex. App. 347. See note to Garcia v. State, 82 Am. Dec. 607. One cannot be convicted on the uncorroborated testimony of an accomplice: People v. Kraker, 72 Cal. 459.

CRIMINAL LAW-EVIDENCE-POSSESSION OF GOODS. - Possession of recently stolen property, to warrant an inference of guilt, must be personal, exclusive, and unexplained: Jackson v. State, 28 Tex. App. 370; 19 Am. St. Rep. 839, and note; Matlock v. State, 25 Tex. App. 454; 8 Am. St. Rep. 451, and note; Jackson v. State, 28 Tex. App. 143; State v. Warford, 106 Mo. 55. See State v. Jennings, 79 Iowa, 513.

JONES V. STATE.

[29 TEXAS APPEALS, 20.]

EVIDENCE-CONFESSIONS-INSTRUCTIONS.

- Where the evidence against one on trial for murder consists mainly of admissions made by him soon after the homicide, and the confessions contain exculpatory or mitigating circumstances which are not shown by other evidence to be false, the jury should be instructed that the whole of the admissions or statements are to be taken together, that the state is bound by them, unless they are shown by the evidence to be untrue, and that they are to be taken into consideration by the jury in connection with all the other facts and circumstances in the case, and if not so instructed, the judgment should be reversed.

A. W. O. Hicks, for the appellant.

W. L. Davidson, assistant attorney-general, for the state.

WILLSON, J. This conviction is for murder in the second degree, and is based mainly upon the admissions made by the defendant soon after the homicide. He stated, in substance, that he killed the deceased, but that he killed him in self-defense. There was no evidence adduced by the state directly contradicting the statement of defendant that he killed the deceased in self-defense. Some slight circumstances were proved by the state tending to show that the homicide was actuated by malice, and negativing the theory of self-defense, but it cannot be said that defendant's claim of self-defense was disproved by the state.

On the trial, counsel for defendant requested a special instruction, as follows: "When the admissions or confessions of a party are introduced in evidence by the state, then the whole of the admissions or confessions are to be taken to