Andrews v. State

25 Tex. Ct. App. 339 | Tex. App. | 1888

Willson, Judge.

Defendant proposed to prove by several witnesses that, on the day after he took possession of the alleged stolen cow, he stated that he had taken up said cow as an estray, and believing the same to be an estray. This proposed testimony was rejected upon objection made thereto by the district attorney, upon the ground that such statements were self serving declarations. At the time said declarations are alleged to have been made, the defendant had possession of the cow." We are of the opinion that the court erred in rejecting said testimony. It is well settled that, when possession of recently stolen property is relied on as inculpatory of the defendant, his explanation of such possession is admissible in his behalf, if such explanation was given on the first occasion for any explanation by him; that is, when he was first directly or circumstantially called upon to explain his possession. (Willson’s Crim. Stats., section 1300.)

It is true that the rejected explanation is not the first made by the defendant. He had explained his possession of the cow to other witnesses on the day previous, the day on which he was first seen in possession of the cow. With respect to these prios explanations, some of which were proved by the State and others by the defendant, the testimony was conflicting, and even the State’s witnesses, with regard to said explanations, contra-dieted each other. One of these prior or first explanations was that he had taken up the" cow in town; that she belonged to some movers, and he thought he would get paid for taking care of her. This explanation was made when he brought the cow home, and when he was first called upon to explain his possession of her. The rejected testimony as to explanations subsequently made by him was corroborative of said first explanation; and while perhaps, ordinarily, such subsequent explanations would not he held admissible, we think where, as in this case, the testimony is conflicting and ^uncertain, it is fair and just that the defendant should have the benefit of them, when they are in corroboration of his first explanation, as they are in this case.

It has been proved by the State that defendant, on the day he took the cow, made different explanations of his possession of her from that proved by the defendant. The State’s witnesses did not agree, but contradicted each other as to these explanations.. In this state of case the rejected testimony, corroborating, as it does, the other testimony of the defendant, was very material to him. It was for the jury to determine what explanation, in fact, he gave of his possession of the cow when he was first called upon to explain possession, and whether or not such explanation was reasonable, and, if so, whether or not it had been disproved by the State. And to assist the jury in determining these questions, we think it was the right of the defendant to have placed before them every fact and circumstance legitimately bearing upon and tending to sustain his defense, and tending to support his testimony upon that issue.

Opinion delivered April 18, 1888.

Because of the error discussed, the judgment is reversed and the cause is remanded.

Reversed and remanded.