Nixon v. State

Appellant was convicted of the theft of a horse, the property of one McCaskell. On the trial the State was permitted to prove that defendant was in possession of and sold in the city of San Antonio other stolen horses, the property of one Talley, about three weeks prior to the date of the theft of the horses set out in the indictment in this case. Appellant's objection to this evidence was overruled, and he duly reserved his bill of exceptions.

This testimony was not admissible. "When necessary to establish identity in developing the res gestae, 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 from 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 is on trial." 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]; Holmes v. The State, 20 Texas Ct. App. 509[20 Tex. Crim. 509]; Alexander v. The State, 21 Texas Ct. App. 407[21 Tex. Crim. 407]; Harwell v. The State, 22 Texas Ct. App. 251[22 Tex. Crim. 251]; Whart. Crim. Ev., secs. 31, 48, et seq.

"When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral inculpatory facts is immaterial, provided they be close enough together to indicate that they are part of a system." Hennessy v. The State, 23 Texas Ct. App. 340[23 Tex. Crim. 340]; Morgan v. The State, ante, p. 1; Whart. Crim. Ev., sec. 38. This testimony did not tend to identify any fact or circumstance which could aid in developing the res gestæ, nor did it tend to prove system between the offense on trial and that introduced, nor did it develop a criminative fact or circumstance against defendant in relation to the case then on trial, nor did it explain a relative or competent fact or circumstance pertaining to the theft of the horses charged in the indictment. Whart. Crim. Ev., sec. 48. Defendant was on trial for theft of McCaskell's horses, shown to have been committed on the night of March 29, ten miles northwest of Lockhart, whereas the testimony objected to proved possession by defendant of Talley's horses in San Antonio on the 5th of March, after they had been stolen on the night of March 3, eight or nine miles east of Lockhart. This testimony does not come within any of the rules authorizing admission of evidence of extraneous crimes and offenses. For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.