Long v. State , 55 Tex. Crim. 55 ( 1908 )

On a previous day of this term the judgment in this case was affirmed.

A motion for rehearing is filed urging the contention that this court was in error in not reversing, because of the failure of the trial court to limit the evidence in regard to taking the diamond pin mentioned by the witness on the trial of the case. The theory of appellant's contention is that this was an extraneous crime introduced for some purpose and should have been limited to such purpose. A great many authorities are cited in support of his proposition and a great many more could have been cited. If the testimony brought appellant's case within the rule contended for by him, his proposition would be well taken and there would be no question between this court and counsel. Wherever extraneous crimes are introduced to establish identity in developing res gestae, or to prove the guilt of the accused by circumstances, it may be necessary and usually is necessary, to limit the effect of such testimony. Such has been the rule in Texas from the beginning of our jurisprudence wherever the question has arisen, but the crimes introduced must beextraneous. This rule is recognized in the decision but it is stated there and reiterated here, that the facts in regard to the taking of the pin was a part of the case itself and not within the line of authorities relied upon by appellant. The rule stated by the court in the former opinion, is as well recognized as that urged by appellant in his motion for rehearing. With his usual clearness, accuracy and precision of statement, Judge Hurt announced the rule applicable here, in Thornley v. State, 36 Texas Crim. Rep., 118, where the two rules were under review. The following language occurs in that opinion:

"As we understand the law with reference to the admission of extraneous crimes, whenever they are admitted in evidence, and the effect has a tendency or might bring about a conviction for the extraneous crime, the court must limit the effect of the testimony in his charge to the jury. As this is the case, also, where the testimony, being admitted, has a tendency to injure the rights of the appellant in any other direction. The testimony must be limited. But where the testimony is simply used to prove up the case as res gestae, or to prove any other fact that forms a part and parcel of the case, so as to show the defendant's guilt, and there is no probability of the jury convicting for the offense not charged, it is not necessary to limit the effect of the testimony. In fact, it is only necessary for the court to charge upon and limit said testimony when there is danger of a conviction for the offense not charged, or of an unwarranted use of the testimony to the prejudice of the defendant in the case in which he is being tried." This is such a clear and accurate statement of the two rules that we deem it unnecessary to undertake an elaboration or discussion of them. We think the evidence is sufficiently stated in the former opinion to illustrate the fact that the taking of the diamond pin was a part and parcel of the case itself. We will, however, reiterate that the Schneiders and Boehler were crowded from the front and rear by the parties to the conspiracy as they were entering the car, and while so pressed one of the takers reached over the shoulder of old man Schneider and seized his diamond pin, while the other took from Boehler the pocketbook when they immediately sought safety in flight. This was not an extraneous crime, as we understand under the decisions requiring a charge limiting the effect of extraneous crimes. The rule laid down in the Thornley case, supra, is as well recognized in the decisions as is the rule contended for by appellant, and where the facts developed are, as they were in this case, it is not necessary to limit. We might further cite in support of this view Leeper and Powell v. State, 29 Texas Crim. App., 63; Moseley v. State, 36 Tex. Crim. 581; McKinney v. State, 8 Texas Crim. App., 626; Ogle v. State, 58 S.W. Rep., 1005; Wilson v. State, 37 Tex. Crim. 385; Winfrey v. State, 56 S.W. Rep., 919; Quitzow v. State, 1 Texas Crim. App., 55; Hirschfield's case, 11 Texas Crim. App., 216; Harris v. State, 34 Tex.Crim. Rep..

The motion for rehearing is overruled.

Overruled.