Kelley v. State , 31 Tex. Crim. 211 ( 1892 )

Appellant was convicted for burglary of the photograph gallery of one Bunnell, situated in the town of Cisco. The property taken therefrom consisted of one tube and four lenses. On the same night, in the same town, Casey's photograph gallery was burglarized, and from it was taken four lenses. A day or two subsequent to said burglaries, and about eighteen miles from Cisco, defendant was arrested for the burglary of Bunnell's house. In his valise was found all of the stolen property of Bunnell and Casey, as well as a lens which had recently been taken, by means of a burglary, from the photograph gallery of Hughes, in the town of Colorado. He disclaimed the ownership of the articles, and stated that he had received them from one Johnson, under a contract to convey them to Weatherford. On the trial he testified to the same fact. Defendant interposed objections to the admission of evidence in relation to the burglary of Casey's house, "because that other persons than Bunnell lost goods about the same time should not be admitted against him." This evidence was properly admitted. "When an extraneous crime forms part of the res gestæ, evidence of it is not excluded by the fact that it is extraneous." Whart. Crim. Ev., sec. 31. If the evidence tends to establish the res gestæ, or to prove a relative or competent fact or circumstance connecting defendant with the crime charged, or to explain the intent of defendant in his connection with the property he is charged with stealing, or to make out his guilt by circumstances, it is competent for the State to adduce evidence of such extraneous crimes. House v. The state, 16 Texas Ct. App. 25[16 Tex. Crim. 25]; Kelley v. The State, 18 Texas Ct. App. 262[18 Tex. Crim. 262]; Musgrove v. The State, 28 Texas Ct. App. 57[28 Tex. Crim. 57]; Nixon v. The State, ante, p. 205; Whart. Crim. Ev., sec. 31. The court did not err in admitting this evidence.

By Hughes it was proved that about the 9th of March his photograph gallery, in the town of Colorado, was burglarized, and a lens taken from it. The day preceding this burglary defendant was in Hughes' gallery, and made quite a number of inquiries concerning the business, in which conversation he avowed his ignorance of photography. The lens taken from this gallery was also found in defendant's possession, when arrested. This testimony was objected to on the ground of irrelevancy. This objection is not well taken. It was competent, relevant, and pertinent to the issue, and was admissible as a fact going to disprove the reasonableness and probable truth of defendant's explanation of his possession of the alleged stolen property, and to controvert his statement that he obtained the goods found in his possession from Johnson. The defensive theory of the case was based upon the fact that defendant received the goods as bailee of Johnson. Any fact or circumstance that would prove, or tend to do so, that defendant had possession of any portion of the property found in his possession, and claimed to have been received from Johnson, prior to the time that Johnson was or could have been in possession thereof, was relevant, and pertinent to the State's case, and was clearly admissible. Johnson was not seen in Colorado, and defendant was. This evidence tended strongly to disprove defendant's explanation of his possession of the stolen property. Defendant had been before convicted, and served a term in the penitentiary, for theft of photographic instruments.

The court did not err in refusing to instruct the jury to acquit defendant if Harris, the clerk of Bunnell, had the authority to enter the house burglarized, unless the State should negative consent on the part of Harris. Harris was not in possession, care, control, or management of the house, and it was not so alleged. If Harris gave consent to the entry, the defendant should have proved that fact.

The facts set out in the affidavit of Wells attached to the motion for a new trial is not newly discovered testimony. Defendant not only knew of the facts, but had procured the attendance of the witness at his trial, and had him placed under the rule, but did not use him. The State filed no controverting affidavit contesting this issue, but the court heard evidence in relation thereto without such controverting affidavit. This action of the court, it is contended, is erroneous. We do not think so; first, because the testimony was not newly discovered, and this was manifest from the affidavit; and secondly, because the court is authorized to hear evidence without such controverting affidavit. Willson Crim. Stats., secs. 2553, 2554. There being no error in the record, the judgment is affirmed.

Affirmed.

Judges all present and concurring.