Hughes v. State , 101 Tex. Crim. 540 ( 1925 )

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of three years.

The stolen property consisted of a set of carpenter's tools. According to the State's witness, after missing his property, he went to Fort Worth in his automobile. While his car was stopped because of tire trouble another car passed him in which there were three men: McCoy, Azelhurst and the appellant. Their conduct aroused the suspicion of the owner of the property. He followed them to Fort Worth, caused their arrest and found them in possession of his property.

Appellant testified that he was at home and that the tools in question were brought there by McCoy, who offered to sell them. Failing to sell the tools in Dallas, they took them to Fort Worth, where they were arrested. Appellant disclaimed any knowledge that the tools were stolen. Members of the appellant's family gave testimony supporting the theory that he was not present when the burglary was committed.

Several bills of exception complain of the exclusion of the declarations of McCoy. None of the bills, save one, attempt to set out the excluded testimony. Bill No. 3, recites that the witness, R. B. Hughes, on behalf of the appellant, was asked if George McCoy had told the witness that he (McCoy) had stolen the tools and that the appellant was merely present at the time of the arrest. The bill is meagre and fails to state any of the circumstances attending the declaration imputed to McCoy. Appellant, in support of his contention that there was error in excluding the testimony, invokes the rule that in the cases where the State relies alone upon circumstantial evidence, the declarations of guilt by another may be introduced in behalf of the accused. In cases in which the State relies upon circumstantial evidence alone to establish the guilt of the accused, under certain conditions, the declarations of a third party admitting his commission of the offense, is a proper matter of proof. See Stone v. State, 265 S.W., Rep. 900, and authorities cited in the motion for rehearing, p. 903. The present record, in our opinion, does not bring the proffered testimony within the rule announced in the cases mentioned. The stolen property was found in the possession of McCoy, Azelhurst and the appellant. At the time of the finding of the property, no declaration was made by McCoy exculpating the appellant or admitting his guilt of the burglary. McCoy, Azelhurst and the appellant seem to have been placed under arrest. McCoy was not called at a witness for the State and was probably not available to the appellant. Appellant proposed to prove by his father that McCoy had stated at some subsequent time that he had committed the offense. His admission that he committed the offense was not inconsistent with the theory of the State, supported by the evidence, that the appellant was also an actor in the burglary. Both the evidence and the declaration, so far as we conceive them, are consistent with the guilt of the appellant and not inconsistent with his innocence, and therefore it is believed not within the rule to which we have adverted. That part of the declaration imputed to McCoy to the effect that the appellant took no part in the commission of the offense would be admissible under none of the rules of evidence of which we are aware. He being charged as a co-principal in the offense and disqualified from giving testimony for the appellant, to receive his declaration, not admissible under the rule of res gestae, would subvert the statute which disqualified McCoy as a witness in behalf of the appellant. This phase of the case was discussed in Walsh v. State, 85 Tex. Crim. 208; Staton v. State, 93 Tex.Crim. Rep.. Upon the present record, the bill fails to show that the learned trial judge committed error in refusing to receive the proffered testimony.

The evidence is deemed sufficient to support the verdict, and no error has been revealed authorizing a reversal.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.