James v. State , 40 Tex. Crim. 190 ( 1899 )

Appellant was convicted in the District Court of Hill County of the theft of money over the value of $50, and his punishment assessed at two years confinement in the State penitentiary, and he prosecutes this appeal.

When the State's witness Dr. J.F. Myrick was on the stand, it was shown that this offense was committed in December, 1896, and no prosecution was instituted against appellant until March 16, 1898. The State, in order to account for the delay in the prosecution, asked him, "Why did you not have him [meaning appellant] arrested sooner?" To which he answered that he was carrying out the instruction of Tom Bell, who was the sheriff of the county. We believe it was competent for the State to bring out from the witness, on re-examination, this explanation for his delay. The attempt of the defendant was to discredit said witness, because, if a theft had been committed by appellant of his property, he knew it in December, 1896; and under the circumstances, ordinarily, it would be expected that he would have instituted the prosecution sooner. We believe it was competent for him to account for the delay, as was done in this case, by stating that he did so at the suggestion of the sheriff. This testimony was not of a character in itself calculated to prejudice appellant, as in Bennett v. State, 39 Texas Criminal Reports, 639, but merely to support the witness whose credit had been attacked because of his failure to prosecute sooner.

While the witness Dr. J.F. Myrick was on the stand, the court permitted State's counsel to ask him the following question: "Did you tell Bell whom you though got your money?" and said witness Myrick answered, "Yes," — to which question and answer defendant then and there excepted. We think that this testimony was inadmissible, because it calls for the opinion of the witness, and was hearsay, and, in effect, it was bringing before the jury the opinion of the witness as to the guilt of appellant, and was therefore injurious to his rights.

Appellant complains of the court permitting the State's witnesses Miss Alice Myrick and H.C. Myrick, in response to questions propounded by State's counsel, to testify that missed certain articles of wearing apparel, and found certain articles of wearing apparel belonging to said witnesses in the mattress of the bed occupied by appellant and his wife; and the said H.C. Myrick testified that he saw the defendant wearing an undershirt which he claimed to be his. Said witnesses further testified that said articles had been taken without their consent. Appellant objected to the testimony on the ground that there was no theft shown by appellant of said articles, and that, if said articles were stolen by appellant, they were distinct offense, and it was not shown that they were taken at the same time the money was taken. The court explained the bill of exceptions by stating "that Mrs. H.C. Myrick and H.C. Myrick testified that they missed the articles of clothing found in the bed about the time the money was stolen, and for that reason the court thought the evidence admissible." It will be noticed here that nothing was said by the court as to the time when the undershirt may have been taken, and his explanation is merely with reference to the clothing found in the bed, and he says that was missed about the time the money was missed. The word "about" is a very comprehensive term. It may cover a considerable length of time. The rule is that other offenses committed at the same time (that is, contemporaneous) may be shown; and there may some cases which stretch the rule beyond this, but such cases can only be supported where such other crimes constitute a part of a system connected with the crime under investigation. Now, a distinct offense committed "about the time" of the offense for which defendant was on trial does not show such other offense to have been committed at the same time. As far as the bill shows, the theft of the clothing found in the bed was not committed at the same time that the money was taken. If so, the court should have made the bill show this accurately. As to the undershirt, the court makes no explanation at all, but leaves it as the original bill left it, — a distinct offense committed at a different time. We would furthermore observe, as to the clothing found between the mattress, that no connection is shown between appellant and this clothing. If these articles were stolen, his wife may have taken them without any privity on his part. We do not think this testimony was admissible, and its effect was of a very injurious character, as against appellant. Long v. State, 39 Tex.Crim. Rep..

We think the court erred in refusing to strike out the contents of a certain letter shown by the witness White to have been written by him to appellant. As soon as practicable, appellant made a motion to strike out same. We do not believe it is competent to prove the contents of a letter shown to have been written by one person to another, without some proof that the latter received the letter. The mere mailing of the letter would not be plenary proof of this fact. More than this, before the contents of said letter were admissible, the letter itself should have been produced, or notice given appellant to produce the same.

Appellant complains of the following portion of the courts' charge: "You are instructed that if you believe from the evidence that J.F. Myrick paid defendant the money described in the indictment as damages or hush money, or for other purpose, or for having caused an abortion on the defendant's wife, if you believe said Myrick did produce such abortion, if any, then you will find the defendant not guilty;" his objections being "that the acquittal of the defendant was made to depend, by said charge, solely upon the payment to the defendant of the money charged to have been stolen in the indictment, and implies that the defendant had rested his innocence and his defense upon the fact that the money alleged to have been stolen was the identical money paid to him by the prosecuting witness, J.F. Myrick, when in truth and in fact no connection was shown by the evidence, and it is not shown by any of the evidence that the money alleged to have been stolen, and as testified to by the witness Myrick, was that paid the defendant by said Myrick as damages for having caused an abortion on his wife." We think appellant's contention is sound, and said charge should not have been given. Before appellant could be convicted, the jury were bound to believe beyond a reasonable doubt that appellant fraudulently took the certain money described in the indictment from the prosecutor, Myrick. As to the money appellant was shown to have left with Mrs. White, unless the State showed beyond a reasonable doubt that that was the identical money stolen from the prosecutor, then the jury could not regard the possession of said money as a circumstance against appellant; and the court should have simply formulated his charge in some such shape, presenting the issue plainly to the jury. For the errors discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

DAVIDSON, Presiding Judge, absent.