Cooper v. State

29 Tex. Ct. App. 8 | Tex. App. | 1890

WILLSON, Judge.

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. Whart. Cr. 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 sufficiently 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 instruct 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 can not 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 500 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. The State, 27 Texas Court of Appeals, 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 judgment is reversed and the cause is remanded.

Reversed and remanded.

Judges all present and concurring.