Sanders v. State , 31 Tex. Crim. 525 ( 1893 )

Appellant was convicted of theft of property over the value of $20, and sentenced to six years in the penitentiary, from which judgment he appeals.

J.E. Clark kept his money in a tin box, secreted under the stubble in one of his out-houses On his last visit to his box, on February 22, he had $180 in currency, but on the 7th of March he went again, and found it was all stolen. Defendant was a renter on Clark's farm, and lived about a mile away. He had moved on the place, and had no money to buy provisions, and the landlord had furnished him meat, and had gone his security to buy farming tools. The widow Raines and her son, Henson, 17 years old, were also living on the Clark farm, and were his (Clark's) tenants. Shortly after the money was stolen, both the defendant and the widow Raines began spending money freely, and some of the money being identified, defendant was arrested, and search warrants issued, under which the premises of the suspected parties were searched.

Appellant complains that the court erred in permitting the constable, M.J. Davis, to testify as to the confessions and statements made by Henson Raines and his mother as to the complicity of appellant in the theft of the money. Over the objection of the appellant, the constable, Davis, was allowed to state, that after he had arrested appellant, he went to the house of the widow Raines, and began the search of her premises, and after finding some new goods and furniture, he ripped open the mattress, and discovered a new overcoat and pants; that he then confronted the youth Henson Raines, and told him he was the one he was after, and he had better tell all about it; that if he did, he (the constable) did not think he would be prosecuted.

Two of the posse at the search swore that the constable also told him that the only way to escape was to lay the whole thing on Sanders; that he had a warrant for his (Henson's) arrest, and if he was jailed, he wouldn't be allowed bail. That Henson Raines then stated that appellant had found the money, and induced him, on the promise of a fail divide, to help steal it; that when they got to the place, appellant had gone and got the money, and had only given him $5 and a horse for his half. The witness was also allowed to state that Mrs. Raines stated to him that a young Sanders told her that it was said that Clark's money was stolen, and she had better hide the things she had bought, and that she had sewed them up in the mattress. Witness also stated that Henson Raines denied having any of the money, but that one Pully, who was present, promised to get the money from him, and next day gave the constable a $20 bill. We are of the opinion that the statements above mentioned were wholly inadmissible against appellant, as being hearsay. The declarations of a witness are sometimes admissible to corroborate his evidence when impeached on the ground of corrupt influence or falsification, where it; is shown that the said declarations were made at a tittle and under circumstances that render it improbable that any improper influence was present. Gallaher's case, 28 Texas App., 274; 1 Whart. Crim. Ev., 571.

The witness Henson Raines, after testifying in the case, stated that he had been told by the district attorney and the constable that if he told all he knew "the law could not touch him." We can not see how evidence given under such assurance can be strengthened by statements made by said witness to the officer at the time of his arrest, and also under a similar assurance that he would not be prosecuted if he told all about the matter. We think the court erred in admitting the testimony. In regard to the testimony of this witness Henson, we desire to say that it is improbable when weighed by itself. His statement as to his own habits and propensities is certainly not calculated to inspire confidence in any account he would give, and his reputation for veracity and honesty, if appellant's witnesses are to be believed, is certainly below par. His claim that appellant got all the money and refused to divide is not consistent with his offer of $60 cash to Rex Chamberlain for his horse and saddle and bridle, or with the fact that $20 was recovered from him by the constable, and that his mother made purchases of clothing and furniture. It can scarcely rebut appellant's claim of selling the horse to Mrs. Raines, and certainly is a frail support upon which to rest a conviction. There is no other reversible error in the case. The judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.