House v. State , 1884 Tex. Crim. App. LEXIS 60 ( 1884 )

Hurt, Judge.

At the last Galveston term of this court we affirmed the judgment in this case without a written opinion. Appellant at that term made a motion for rehearing, which was submitted and transferred to this branch.

We will discuss but two of the grounds presented; first, that which relates to the admission of certain evidence over the objections of defendant; and second, the charge of the court with reference to what constitutes a witness an accomplice.

It appears from the record that Henry Trammel bought twenty-three yearlings from John House, in DeWitt county, and that these yearlings were driven to Gonzales county and placed in Trammel’s pasture. Among and with this bunch of cattle was the yearling charged to have been stolen by defendant. And it further appears that the witness Haldeman let House have three of the yearlings, and assisted Trammel in driving the twenty - bhree head to Gonzales county. By Haldeman the State proved, over objections of defendant, that defendant changed the brands on these cattle. The objection is that the testimony fails to identify the cattle upon which the brands were changed, Haldeman swearing positively that the yearling in dispute was never seen by him at any time “in his life.” It is, however, stated by Trammel that this yearling was in the bunch of the twenty-three head, and that Haldeman assisted him in driving them to Gonzales county.

A fact is admissible because of other facts in the record, and this rule is not affected by a conflict in the evidence contradictory of the existence of the fact. The jury may have believed Trammel, and if so, the yearling was with and constituted one of the twenty-three head received by Trammel at Powell’s, and driven by him and Haldeman to Gonzales county, and there placed in Trammel’s pasturo

Under these circumstances, had the State the right to prove by Haldeman that the brands on some of these cattle—the cattle received by Trammel from defendant at the same time the yearling in dispute was received—were fraudulently altered?

We are of the opinion that this was competent and admissible evidence under the principles enunciated in the following rule; “When necessary to establish identity in developing the res gestee, or in making out the guilt of the accused by circumstances connected with the theft, or to explain the intent with which the accused acted with respect to the property for the theft of which he was being tried, it was competent for the State to prove that other property was stolen at or about the same time and in the same neighborhood from which the property in question was stolen, and that this other property was found in possession of the defendant when arrested for the theft of the property for which he was on trial1 The purpose of such proof, however, must be explained in the charge of the court.”

If the State had the right to prove that the defendant altered the brands on these ..cattle — and we hold that it had — Haldeman knew that defendant had fraudulently altered these brands, and with this knowledge assisted Trammel, with the further knowledge that he claimed through defendant, to drive them from DeWitt county to Gonzales county. In this we find evidence tending to show that Haldeman was an accomplice. This fact impressed itself on the learned judge presiding, and upon this subject he gave the following charge to the jury: “An accomplice is one who, knowing the unlawful intent of another, aids him in the commission of the theft. If the jury find that the witness Haldeman was an accomplice in the theft, provided a theft was committed as charged, then the jury could not convict the defendant on his testimony alone, and unless it be corroborated in some material matter tending to connect the defendant with the theft,” etc.

To this charge the defendant excepted in his motion for new trial, upon the following ground: “The court erred in setting out and defining the law of accomplices when used as witnesses in the trial of a cause, in limiting the question of'accomplice-ship to the connection of the witness with the commission of the theft. The charge should have submitted the question of particeps criminis in its full.import, whether with the original theft or any after connection with the stolen property.’

This objection to the charge is unqestionablv well taken, and we would remark that when this point passed under examination at Galveston, our view of the record bearing upon this subject led us to believe that Haldeman was an accomplice by reason of the fact that he participated in the talcing of the yearling» In other words, that the evidence tended to show that he was an accomplice, and that he became so by aiding in the talcing as well as in driving the yearling; and that consequently there was no injury to defendant. In this, however, we find that we were mistaken, and hence the error in the charge assumes a very serious character, it being doubtful whether Haldeman took, or aided in the taking, and there being no doubt of his guilty, connection with the yearling after the theft, if Trammel is worthy of belief.-

“Accomplice” lias a broader signification as used in Article 731 of the Code of Criminal Procedure than it has as used in Article 79 of the Penal Code. In the former it includes principal and accessory—in fact, all guilty participants, whether principals, accomplices or accessories. (Williams et al. v. The State, 42 Texas, 392; Jones v. The State, 3 Texas Ct. App., 575; Davis v. The State, 2 Texas Ct. App., 588; Kelly et al. v. The State, 1 Texas Ct. App., 628; Irvin v. The State, 1 Texas Ct. App., 301; Roach v. The State, 4 Texas Ct. App., 46; Miller v. The State, 4 Texas Ct. App., 251; Barrara v. The State, 43 Texas, 360.)

We are of the opinion that the error here complained of was of such importance as was calculated to injure the rights of defendant,.and that the judgment must be reversed.

We cannot refrain from noticing the condition of this record— that which relates to the facts of the case. Confusion and uncertainty abound in regard to matters which could have been made clear and certain. A few instances will suffice. Haldeman swore that the brands were altered. How altered? In what brand were the cattle before they were altered? And into what brand did the alteration place them? When did the alteration take place? Did the brands, after the alteration, correspond with those on the cattle when seen by the other witnesses in Trammel’s pasture? Twenty-five or thirty head of cattle were seen in Trammel’s pasture, branded in defendant’s brand. What description of cattle? Trammel bought of defendant twenty-three head of yearlings. Were those seen in his pasture in defendant’s brand yearlings? We could point out other facts left in obscurity which could have been placed beyond cavil, but these instances will answer our purpose.

We have examined each assignment made by defendant closely, but do not find such error as will require a reversal of the judgment, except the error in the charge of the court, above noticed. The ruling of the court in regard to the right of defendant to introduce certain witnesses'will not, under the circumstances, be revised. The facts proposed to be proved by those witnesses, however, were very clearly admissible.

For the error in the charge of the court, above indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered April 19, 1884.