#### Roy v. State.

Opinion delivered January 23, 1922.

Larceny — variance between indictment and proof. — To convict one of grand larceny when charged as a principal, the proof must show either that he committed the crime in person or that he was present, aiding and abetting, or ready and consenting to aid and abet, and it is insufficient where it tends only to show that he was an accessory before or after the fact.

Appeal from Polk Circuit Court; James S. Steel, Judge;

reversed.

Norwood & Alley, for Appellant.

One not present when an offense is committed cannot properly be indicted as principal. 109 Ark. 498; 37 Ark. 274; 41 Ark. 173; 96 Ark. 58; 109 Ark. 389.

Defendant’s objection to the opening statements of the prosecuting attorney should have been sustained. 62 Ark. 516; 71 Ark. 415.

The testimony of J. A. Thornton and Jim Murray as to an unlawful organization should have been excluded.

*472It was error to permit Jim Murray to testify that the defendant had been convicted of stealing- chickens. One theft cannot be proved by another unless the two are so connected as to form parts of the same transaction. 39 Ark. 278; 91 Ark. 555; 120 Ark. 492; 110 Ark. 226.

It is error for the trial judge, either directly or indirectly, to express to the jury his opinion as to the weight of the evidence. 107 Ark. 469.

An instruction based on a state of facts not in evidence is erroneous. 54 A Nr. 336: 8° Ark. 324.

Instruction No. 3 should not have been given. There was no evidence to show a conspiracy. 74 Ark. 554. Corroboration must be by other evidence tending’ to connect the defendant with the commission of the crime. 43 Ark. 367; 50 Ark. 534.

J. 8. Utlev, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.

An aceessorv before the fact is punishable as principal, but must be indicted as an aceessorv. 104 Ark. 245; 108 Ark. 447.

An accessory after the fact is one who, after full kmwledge that' a crime has been committed, conceals it or protects the one found guilty. C. & M. Digest, sec. 210.

One who advises or encourages the commission of a felony, but not present when committed, cannot be convicted under an indictment charging him as principal. 37 Ark. 274; 94 Ark. 548; 96 Ark. 62; 50 Ark. 313; 41 Ark. 17.

Where the record fails to show that the jury in a felonv case was sworn, a judgment of conviction will not stand. 37 Ark. 61 ; 34 Ark. 357; 25 Ark. 83.

Under the foregoing authorities we confess err--

. Humphreys, J.

Appellant was indicted in the Polk Circuit Court, as principal, for the crime of grand larceny, by unlawfully and feloniously stealing a cow, the *473property of Ira McCown, in Polk County, Arkansas, on the 10th day of September, 1921. At the same term of the court he was tried and convicted of the charge, and as punishment therefor sentenced to serve a term of one year in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.

The evidence adduced on behalf of the State tended to show that appellant was a member of an organization in Polk County, Arkansas, banded together for the purpose of stealing generally; that, pursuant to the intent and purpose of said organization, Jim Murray, Charlie, Jess and Allen Nichols did steal and drive out of said county into Oklahoma a cow belonging to Ira McCown; that after the cow was driven across the line into Oklahoma appellant appeared and assisted the others in butchering her.

In order to convict one of the crime of grand larceny when charged as a principal in the crime, the proof must either show that he committed the crime in person or that he was present, aiding and abetting, or ready and consenting to aid and abet in the crime. The proof, at most, only tends to show that appellant was an accessory before or after the fact of the crime. Before he could have been convicted of the larceny under the evidence adduced by the State, it would have been necessary to charge him as an accessory either before or after the fact of the crime. Roberts v. State, 96 Ark. 58; Hunter v. State, 104 Ark. 245; Jones v. State, 108 Ark. 447. There was a fatal variance between the proof and the crime charged in the indictment.

For the error indicated, and confessed by the Attorney General, the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.