Appellant was convicted of receiving stolen property, and seeks a reversal of the judgment sentencing him to a term in the penitentiary upon the following assignments of error: (1) That the verdict is not supported by sufficient testimony; (2) that the court erred in the admission of testimony; (3) that error was committed in giving and in refusing to give certain instructions.
Upon the first assignment of error it may be said that the testimony on the part of the prosecution was to the following effect: Gladys Settle was en route to visit her aunt, and was accompanied by her father. She and her father went into the courthouse, and left in their car her suitcase, 'containing, among other articles of wearing apparel, two dresses. Upon returning to the car they discovered that the suitcase had been stolen, and they reported its loss at once to the police. The next day appellant’s daughter was seen on the street with one of the dresses on. This young lady was carried to her mother’s house, where the officers were told that appellant had bought the dress from a peddler for ten dollars.
'Witness Templeton testified that he saw the suitcase taken from the car, and that the man who took it resembled appellant, but that his hat was pulled down over his face, and he was not certain about his identification. He described the apparel of the man, and, when appellant was brought before him, a day or two later, appellant had on clothes of similar description. Appellant explained his daughter’s possession of the dress by saying that he bought it from a peddler, and there was some testimony tending to show that there was a peddler in that neighborhood about the time the suitcase was stolen. We cannot say this testimony is not sufficient to sunport the conviction. The jury passed upon appellant’s explanation of Ms possession and did not accept it, and we cannot say that tMs action was arbitrary.
Appellant was asked if he was not addicted to the use of narcotic drugs, and he answered that he was not. Asked when he had discontinued their use, he stated that he had not used such drugs for a period of two weeks preceding Ms trial. The court permitted the State to prove by a police officer that persons known.to the police as drug addicts were frequently seen at appellant’s house. This testimony was objected to, but the prosecuting attorney insisted it was competent to show who appellant’s associates were, and, in admitting it, the court stated the jury might consider it for whatever it was worth.
We think this testimony was incompetent and its admission prejudicial. It was, of course, proper to ask appellant, on his cross-examination, touching his recent residence, occupation and. associations, as affecting his credibility as a witness, but, as these matters were collateral, his answers, whether true or false, was the extent to which that inquiry could be carried, and the court should not have admitted independent testimony on the'subject of appellant’s associations, as there was no attempt to prove a conspiracy between 'himself and such persons, or any connection with the crime by such persons. Sweeney v. State,
The court also admitted, over appellant’s objection, testimony that at some previous time — and the time was not fixed — the sheriff of Crawford County had recovered from appellant’s house a stolen article. The court per- • mitted appellant to testify that the person who had stolen the . article was arrested, and that he was a witness at the trial. But. we do not think this explanation removed the prejudice of the incompetent testimony.
Cain v. State,
We think, however, the testimony here admitted, over appellant’s objection, does not come within any of the exceptions to the general rule under which evidence of another crime may be shown. There was no attempt to show that there was any scheme or plan or practice whereby appellant received stolen goods, or that' the dresses were received by appellant pursuant to any scheme or plan; the time of the possession of the first stolen goods was not even shown; and, in the absence of substantial testimony tending to show that it was appellant’s business or practice to receive stolen goods, this testimony was incompetent and prejudicial. Wood v. State,
The' court gave, over appellant’s objection, an instruction numbered 3, which advised the jury that the finding of stolen property in the possession of another, shortly after the said property had been stolen, raises a presumption of guilt as against the person in whose possession the same is found, but that this presumption is a rebuttable one, and that, if this possession is explained to the satisfaction of the jury, the presumption is overcome, and should not be considered as any evidence against the accused. After so announcing the law, the court proceeded in the same instruction to say that the finding of the property in the possession of the defendant was not itself sufficient to warrant a conviction, but was merely a circumstance to be considered by the jury in passing on defendant’s guilt or innocence, and that he should not be convicted unless they were convinced, beyond a reasonable doubt, that defendant knew the dresses were stolen when he received them.
We have here an instruction which contains the error which has been frequently condemned by this court as prejudicial. A recent case is that of Pearrow v. State,
There is no other assignment of error which we think requires discussion, hut, for the errors indicated, the judgment must be reversed, and the cause will be remanded for a new trial.