Dungan v. State , 39 Tex. Crim. 115 ( 1898 )

Appellant was convicted of the theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

It appears from the State's testimony that the cattle alleged to have been stolen were taken in pursuance of a, conspiracy between A.F. Williams and appellant, Dungan. On the trial the State introduced P.J. Holbert, who testified that some time in January or February, 1897, prior to the alleged theft, he had a conversation with one A.F. Williams, and that in said conversation said A.F. Willams stated that the cattle belonged to the defendant, and that defendant did not desire it known for fear Mr. Hudson, who had a judgment against defendant, would give him some trouble. This testimony was objected to — first, because defendant was not present nor in the hearing of said conversation; second, because the State had not proven the conspiracy between the defendant and A.F. Williams to commit the offense of theft; third, because said testimony was hearsay, incompetent, irrelevant, and immaterial, and could not be used to bind this defendant. In explanation of this bill, the court states that at the time said statement was made the parties, including the defendant, were going after the cattle, and that he instructed the jury not to consider the evidence unless they found there was a conspiracy between Williams to steal the cattle. (We presume the court meant by this between Williams and the appellant. The bill, however, does not state.) On recurring to the charge of the court, we fail to find any such instruction. We understand the rule on the admission in evidence of statements or declarations of one corspirator as against another to be — first, that the conspiracy must be shown; second, that the conspiracy is then pending, its object not having been consummated; third, that such act or declaration must be in furtherance of the common design. There is no question that there was testimony tending to show a conspiracy between Williams and appellant to steal the cattle, and it is immaterial whether this proof was made prior or subsequent to the admission of said evidence. It is also evident that said statement of Williams was made before the object of the conspiracy — that is, the theft of the cattle — was consummated. As stated by the judge, the parties were then en route for the purpose of taking the cattle. The statement of Williams, however, was made not in the hearing of the appellant, and therefore this testimony, if admissible at all, was only admissible as a declaration or act of a coconspirator pending the conspiracy, and in furtherance thereof. By "furtherance" we understand that the act or declaration must in some measure be in aid of the purpose of the conspiracy, which in this instance was the theft of the cattle. Now, how can it be said that the statement in question was in aid of the theft of said cattle? According to our view, it was merely the statement of the desire of appellant that his connection with the cattle or their taking should be kept secret. It was not even the statement of any language used by the appellant, but, as far as we are advised, it may have been a mere inference on the part of Williams that appellant did not wish to be known in connection with the taking of said cattle. If it is regarded as an expression of appellant made to Williams on the subject, it certainly related to some statement or expression made by appellant to Williams an a former occasion, and was the statement of a past matter. At any rate, we fail to see how the statement made was any act or thing done in furtherance of the conspiracy to steal said cattle, and we accordingly hold that said testimony was not admissible. It was material, because it appears that the State encountered some difficulty in connecting appellant with the fraudulent taking of the cattle, and this testimony was doubtless used by the jury for the purpose of connecting him with said fraudulent taking. See Cortez v. State, 24 Texas Crim. App., 511.

Appellant's second bill of exception raises the question as to the admissibility of the testimony of Mrs. A.F. Williams as a witness on behalf of the State. It appears from said bill, in connection with the explanation of the judge, that A.F. Williams (the husband of Mrs. A.F. Williams) was indicted in two separate bills for the theft of the same cattle charged against the appellant in this case; it being shown that three head of cattle were taken at the same time, — two being estrays and one the property of J.R. Scott. Williams had been tried in one of said cases, and convicted. The sentence, however, had not been passed upon him, and he is shown to have taken an appeal, which is still pending. The other case against Williams was still pending. The bill shows, however, that it has since been dismissed. With regard to this bill, in our opinion, we would state it merely certifies that the State proved by Mrs. Williams a number of criminative facts. These facts are not shown. The statement in the bill is a mere conclusion. The judge may or may not have been correct in his legal conclusion as to the character of the facts proven. The bill should have contained these facts, in order that, reviewing the entire record, we might say whether or not they were of an inculpatory character. If it be conceded that the bill is sufficient, we are inclined to the opinion that, under the peculiar attitude of the case as against the husband of Mrs. Williams, she was not at the time she was placed on the stand a competent witness for the State. The cases were still pending against her husband. It is true, if her husband had been willing to testify for the State, he might have been introduced. But we take it that where the husband is under indictment with the co-defendant, who is an alleged principal in the offense, and the cast is still pending against the husband, and he had not been introduced as a witness by the State, the wife is not a competent witness. See Bluman v. State, 33 Tex. Crim. 43.

It is not necessary to discuss the other matters assigned as error, as they are not likely to occur on another trial of the case. The judgment is reversed and the cause remanded.

Reversed and remanded.