DocketNumber: No. 3036
Citation Numbers: 26 Tex. Ct. App. 593
Judges: Hurt
Filed Date: 12/19/1888
Status: Precedential
Modified Date: 9/3/2021
Appellant and Switzer and Voight were found in possession of, and were skinning, a stolen cow which was
But it is a fact that the evidence fails to show with any degree of certainty that appellant was present or heard the remarks of Switzer or Yoight. If not present, or if he did not hear the remarks, he was not bound by them. The rule being that the accused must be present, or at least it must reasonably appear that he heard the statements of others, before they can be made evidence against him. This must be shown affirmatively by the prosecution, though it may be done by circumstances.
The Assistant Attorney General contends that a conspiracy is shown and was not consummated, and hence the declarations of Switzer and Yoight—co-conspirators—were admissible. Let us concede, for the argument, the conspiracy,and that it was not at an end. Evidently the exclamation of Switzer and Yoight —“Arrest Albert Bookser; he is the guilty party if anything is wrong”—was not in furtherance of the common design; did not ' aid in the consummation of the conspiracy. Appellant’s objections to this matter should have been sustained.
We are also of opinion that the charge of the court upon the rule applicable to a case of circumstantial evidence is not sufficiently full. For the correct rule see Willson’s Criminal Forms, section 714.
The judgment is reversed and the cause remanded for another trial.
Reversed and remanded.