¶1 ON MOTION FOR REHEARING.
¶2 The judgment in this ease was affirmed at a former day of the term, and now comes before us on motion for rehearing. Appellant contends that this court was in error in holding that the testimony introduced by the State, showing that Will Holt was arrested twenty-three miles west of Abilene on the day after the alleged theft, was admissible, because he says that this arrest of Will Holt showed that he was then engaged in flight, and that it was an act of a coconspirator, brought to bear against the defendant after the object of the conspiracy had been accomplished. We treated this question in the original opinion, and we there held that the testimony embraced no act or declaration of a coconspirator in regard to the subject matter of the conspiracy, but merely showed the arrest of Will Holt. It is now urged, however, that this arrest, after the conspiracy, showed his flight, and was illegal, and was a material circumstance against the appellant. If this contention be sonnd, and it is not without authority (see Jump v. State [Texas Criminal Appeals], 11 Southwestern Reporter, 461), then we reply that, according to the testimony in this ease, the conspiracy between the parties was not at an end with the commission of the theft. The record shows that the perpetration of the theft was in pursuance of a conspiracy engaged in by defendant, Ell Carter, and Will Holt to have Z. Eubottom' steal the money from his father, and that he was to deliver the same to said parties, and they were to take it to Arizona, and invest it for him; and when arrested the parties had evidently some of this same money with them, en route to Arizona. And if it is claimed that the arrest of Will Holt and Ell Carter at Merkel, en route to Arizona, showed flight, and was an act of s^id parties, liable to be used against appellant, then we say that said act of going to Arizona was embraced in the conspiracy.
¶3 Appellant also reiterates his contention with reference to the theft of *300 $40 stolen by Z. Rubottom from his father in May, 1897, and he insists that the court is in error in stating that there was a series' of conversations after this between appellant and Z. Rubottom up to the time of the alleged theft, which occurred in December, 1897; and he says that the record shows that appellant was absent from the State from May or June, 1897, until some time in December, 1897, and that this $40 theft was not a part of the system; and the case of Hennessy v. State, 23 Texas Criminal Appeals, 340, does not apply, as there was no connection between the $40 theft and the $90 theft and the $340 theft. It is true that after the $40 theft in May or June, 1897, appellant was absent from the State until some time in December; but it does appear, if the testimony of Z. Rubottom is to be believed, that appellant suggested the $40 theft, and after its commission he knew of same, and how it was committed. When the subsequent thefts of $90 and $340 occurred, the matter of the $40 theft was revived and discussed, and it was insisted by appellant that Rubottom steal the money from his father as he had previously taken the $40. We think the testimony in relation to this matter is sufficient to make it admissible in evidence as bearing on the theft of the $340.
¶4 Appellant says that we failed in the former opinion to pass on the correctness of the court’s charge on the law of principals. The court instructed the jury on this subject as follows: “Therefore you should not consider for any purpose, as against the defendant Deat Holt, any act or declaration of Will Holt or Ell Carter, unless you should believe from the evidence that defendants Will Holt and Ell Carter had conspired and agreed together to fraudulently induce and encourage Z. Rubottom to steal his father’s money. If they did so conspire, then the act or declaration of one is that of each of the others until the completion of the object of conspiracy, but no longer.” He says that this law is correct as an abstract proposition, but it has no application to this case, because he says that Will Holt has been acquitted of the charge, and that his acquittal renders any act or declaration of his whatsoever inadmissible as against one of his codefendants, because another jury has decided that he was not a party to the conspiracy; and he refers us to Paul v. State, 12 Texas Criminal Appeals, 346. It was there held that, if one of two joint conspirators should be acquitted, the record of such acquittal could be introduced in evidence on the trial of a subsequent conspirator. This was based on the principle that if two are charged with a conspiracy; and one is acquitted, the other must be acquitted also, though he be guilty of doing the act charged, for it would be no conspiracy, however otherwise it may be a crime. Dever v. State, 37 Texas Crim. Rep., 396. It is true, the court, in passing, say that “where one of several joint conspirators has'been acquitted, the acts and declarations in furtherance of the common design are inadmissible as evidence against the other defendants, because, if he ivas not a coconspirator, his acts and declarations could not be binding upon him.” But this matter was not before the court. We think that where a party is charged with a substantive offense not a con *301 spiracy, and it appears that the same was in pursuance of a conspiracy, the acts and declarations of one shown to have been engaged in the conspiracy are admissible in evidence, notwithstanding such coconspirator, whose declarations are sought to be admitted, has previously been acquitted. We would further remark, in regard to this charge, that the objection thereto is found in the motion for a new trial; and it does not show that Will Holt had been acquitted, so that the question is not raised.
¶5 Appellant also states that we failed to discuss his motion for a new trial on the ground of newly discovered evidence. This newly discovered evidence would simply serve to impeach the witness Z. Eubottom, and new trials are rarely granted to obtain testimony for the purpose of impeaching a witness. The motion for rehearing is overruled.
¶6 Motion overruled.