*1 425 pro- within came This conflict been reached. contrary to they the same' jury, settled have vince verdict their contention, disturb and we will not thereon. an assault establish think the sufficient to We verdict, malice, as is shown
murder without judgment therefore affirmed. is v. The State.
Arch T. Watson 27, October 1943. No. Delivered Rehearing Denied December *2 opinion the states case. Amarillo, for Stallings, Claude, Calhoun, J .S. of and Clem appellant. Austin, Bell, Attorney,
Spurgeon E. State. State’s DAVIDSON, Judge. years offense; punishment, two theft is the the
Cattle penitentiary. state 29th,. E. discovered or about March J. Robinson On pasture. stolen from Some roan had his that his cow been blue pos- thereafter, found in the hide of the cow was weeks
three bought Eads, buyer. the that he a hide Eads testified session Doty. Doty hide that of cow testified that the from hide 30th, 1942, purchased, appellant, on March which from had he butchered', the hide to- Eads. after he sold he that, facts, the about to these State showed In addition alleged theft, Adams, the prior the Sheriff to date week County, upon appellant he and demanded called of Potter something by appellant upon like pay a balance of $50.00 du.e appellant hot had in check cases wherein and some fine costs swindling by check. worthless convicted been that, appellant unless the matter was settled warned sheriff going put days, jail. to him On next few the within Doty, Doty he had day the cow call appellant sold Doty’s place, advising that, ap- sheriff, if he would come him fine due on the and costs. Adams pay the balance pellant would Neveau, attend to the matter. deputies, Le one his sent of sale Doty, a bill he executed the cow to When sold therefrom, Doty, at therefor, and, proceeds derived from thereof, part paid deputy sheriff appellant’s request, appellant. price purchase delivered the balance Appellant testify behalf. The a witness his own did not that the was sufficient to show of his wife others Doty belonged (appellant) and was to him sold to cow special not, been, By re- cow. could not have the stolen charges appellant, submitted quested this defensive issue was jury. Appellant sufficiency support attacks open conviction. He insists that man- aboveboard ner which the sale the cow was made to with the therefor, on of a written of sale execution bill full *3 knowledge presence deputy sheriff, of of and in the a consti- explanation cow, possession by a tutes reasonable of him of the comporting with his innocence. agree appellant’s unable We ar.e At no contention. appellant’s possession challenged.
time was of the cow At no explain time did he upon explain called was he —nor —his cow, possession of the or how possession he came have of it. explanation possession An property of of acquisi- stolen refers property possession tion of to how and such thereof came about. explanation by The facts did appellant not constitute an of his possession Moreover, of stolen testimony cow. if such given being explanation as possession, construction an of testimony any was presumption State’s sufficient to overcome arising by explanation, of such explanation pos- reason for of is an inference of session Branch’s fact and not an inference of law. C.,
P. Sec. testimony The appellant unexplained State’s shows possession recently property, of by stolen fortified the further that he property fact had a motive possessed. to steal the amply jury Such facts authorized the to convict. Appellant objected part to all that Adams, Neveau, Le showing witnesses that the un- paid by appellant balance of the fine owed was on account of having swindling by been convicted of the of worth- grew check, and that same less of cases, out some hot check proving by it was because commission him of another and crime, in no extraneous manner connected with the offense for upon trial. was 428 Ordinarily, general rule, proof and as a and ex- of other by policy
traneous crimes the accused is not It admissible. is the of the law one that tried accused crime be for that offense However, exceptions exist, proof alone. to this rule by commission the accused of other crimes becomes admissible proof motive, intent, identity, when such tends to establish case, when such are issues in the it or when tends to solve some issue, disputed gestae. part or when same are a of the res Jur., 33, p. Tex. Sec. Giving case, ap- effect the rule stated in the instant it pears showing that the State was warranted in money warning was need of aas result of the fine and the the sheriff. Such tended to furnish motive steal- (cid:127) ing selling cow, pertinent and was However, therefore material in issue in the case. we are unable to see where- any
it was material issue the case show State thereof, also crime and the nature of which had any been convicted. Proof of fact did such not come within exceptions general rule stated. receipt proof It follows that the de- evidence tails commission another extraneous crime error. was that, receipt insists if the State of this
erroneous, destroyed by its effect before the the limit- charge ing charge court. referred to is as follows: “Supplementary Charge, to and the Court’s Main *4 you, you hereby and read are heretofore filed to in- further follows, as to-wit: structed tendered, evidence, and the court “The State admitted in over defendant, testimony objection Adams, the the M.
the W. and J. H. with LeNevue reference to certain James state- by purported by them and ments testified to have been made defendant, by defendant, said Adams to the the relative to purported ‘hot so-called Checks’ have been in certain some defendant, by payment relative way handled the to some money by Doty J. H. direction on defendant’s or for the County, office of Potter sheriff’s relative to account against purported concerning criminal cause the defendant some alleged checks. said all, you may lawfully evidence at you such consider “If con- purpose for it only by it offered
sider show, other, or State, and none to-wit: As circumstance does, respect show, defendant in tend to if it the motive of the alleged taking the first count of the one cattle indictment, purpose it, other what- if he did take and for no so ever. not, consider, you legally, if consider
“You cannot and should all, any testimony witnesses, said or either at or evidence of against them, concerning charge any any purported court of the defendant
concerning checks,’ any or ‘hot or whether against wrong guilty any was not respect or the law in against checks, any circumstance to such check or as guilt prove prove theft him to tend to of the one or in the first count of the indictment.” alleged cattle charge contradictory
This is of and within itself as to meaningless. thereof, paragraph jury be In the second is- might is, appel- told that it consider such —that swindling check, lant had been convicted of worthless grew that his conviction out of some hot check cases— succeeding paragraph thereof, jury issue of motive. In the any told it is of could not consider such guilt.
A motive commission of a crime is a minor or aux- iliary which, established, fact from when connection necessary facts, primary guilt may other the main or fact of 32, p. Tex. inferred. 12 sion Jur. Sec. 254. Motive for the commis- is, therefore, itself, and, crime of the crime necessity, guilt tends establish the of the accused. The testimony tending could not consider to show a motive for crime, considering commission of a without it as a circumstance relating guilt. charge are unable to reach the We conclusion that the failed against testimony.
to relieve the erroneous admission of the pointed out, judgment For reason of the trial court is reversed and the cause remanded. foregoing opinion Appeals Commission of has Judges by the examined Appeals
been and Court of Criminal approved by the Court. *5 rehearing.
ON state’s motion for Judge. BEAUCHAMP, submitting rehearing, that filed a motion for The has State discussing original opinion in that erred
this Court appellant’s relating ad- 2, 3, 1, exception bills an extraneous crime. of evidence of mission original the State opinion to mean is understood The of funds for right was in need to show that had a not have that it did paying a fine which he owed but purpose of and the right the kind and character to show hearty inis The for which had been convicted. details writer original subject and considers opinion this on with the accord that holding clearly expressed. It was are the reasons in- establishing in the necessary for the offense motive not previously show had been the State stant case swindling by giving nature hot checks. While convicted nothing motive, it question previous added crime picturing a man who the accused as pretty loud did sound being he was tried. likely for which the crime commit would exception are not is that the bills contention chief point objection that will reach the con- an so drawn as to show objections original were opinion. After the several sidered overruled, testified that the “worthless Adams the witness swindling, for appellant had convicted been checks” permissible for the It was totalled between $120.00. $100.00 being pressed by sheriff appellant was to show that State against him. had been assessed pay a fine or fines which developing necessity the char- for before no There was therein, involved and evidence the amounts nor acter of offenses any purpose. Under such cir- showing for was not admissible might regarded otherwise cumstances, objection which an point. authorities collated under general See will save too 133, Tex. P. 208, Ann. C. page Branch’s Sec. rehearing is overruled.
The motion Ray v. State. Williams December Delivered No.