Clay v. State , 40 Tex. Crim. 556 ( 1899 )

Appellant was convicted of horse theft, and his punishment assessed at confinement in the penitentiary for a term of two years; and he appeals.

On the trial the witness Hugh Chamberlain was permitted to testify, over the objections of appellant: That about six weeks before appellant was arrested he came to witness, and told him that he had some stray horses out on the range that he wanted to let witness have, and asked him if he could use them, and he told appellant he could; and appellant arranged with witness to meet witness at Mesquite with the horses the following Sunday, but did not do it. That afterwards appellant came to witness and informed witness that he did not get off with the horses as he expected, and wanted to know of witness when he was going with another bunch, and witness told him he was going that week. Thereupon appellant said he would go out and get the horses and bring them in the next morning. Witness notified Sheriff Ben Cabell of this fact. Thereupon the witness details what he told Sheriff Cabell. Then the State, over the objections of appellant, was permitted to prove the same facts, in substance, as detailed by the witness Harry Chamberlain, — by Sheriff Cabell. Without reviewing all the facts detailed by the sheriff to the jury, we think it sufficient to say that an accomplice can not be corroborated by proving statements that said accomplice made in the absence of the party against whom he is testifying. While it was proper to permit the witness Chamberlain to testify as to all that appellant told him about bringing in the horses, it certainly was not permissible for the witness Chamberlain to testify as to all the facts that he detailed to Sheriff Cabell. Upon the issue as to whether or not the witness Chamberlain was an accomplice, it might have been permissible for the court to admit testimony of Sheriff Cabell in those particulars wherein he testified to facts indicating that the witness Chamberlain was not an accomplice, but merely a detective; but, if the testimony was admitted for this purpose, it would be the duty of the court to instruct the jury that it was admitted for this purpose alone. We have heretofore held that, if a party is acting as a detective, he would not be guilty as an accomplice. And certainly, where the evidence tends to show a witness was an accomplice, it would not be permissible to allow the witness to corroborate himself by detailing the facts he proposed to testify to, to another witness, to wit, the sheriff, and have that witness repeat said conversation, thereby corroborating the accomplice. We notice in this connection that the court, in the eighth subdivision of the charge, instructed the jury as follows: "In passing upon the defendant's guilt or innocence in this ease, you will not consider that part of Sheriff Cabell's evidence, if any, that relates to what the witness Chamberlain may have said to him about the defendant bringing to him strays, stolen, or other stock, and what he was to do about it. Such evidence, if any, was admitted solely for the purpose of assisting you, together with all the other witnesses, if any, in passing upon the credibility of the said Chamberlain as a witness, and in weighing his evidence." It will be readily inferred from what we have heretofore said that this charge is erroneous, in that the same proposes to admit the testimony of Sheriff Cabell on the issue of the credibility of the witness Chamberlain, whereas we have uniformly held that an accomplice can not corroborate himself in any such way. The other evidence tending to show that the witness, Chamberlain was an accomplice, the State certainly would have the right to show facts indicating that the witness Chamberlain was not an accomplice, but a detective. In other words, if the State could show that the witness Chamberlain was acting as a detective, in conjunction with the officers, and only that, he would not be an accomplice; and, if the evidence was introduced for this purpose, it would be the province and duty of the court to limit the same to that specific purpose. Stanford v. State, 34 Tex.Crim. Rep.; McKenzie v. State (Texas Crim. App.), 32 S.W. Rep., 543; Riojas v. State, 36 Tex.Crim. Rep.; Woods v. State, 37 Tex.Crim. Rep.; Doucette v. State (Texas Crim. App.), 45 S.W. Rep., 800.

Appellant contends that the court erred in permitting the witness Chamberlain to testify that Sheriff Cabell came to his place, and took three of the horses away that defendant brought to his place. This identical question was decided by this court in Canada v. State, 29 Texas Criminal Appeals, 537, in which the court, laid down this principle: Evidence that the alleged owner of the stolen property pointed out, claimed, and took possession of the same when the defendant was not present, is hearsay, res inter alios acta, and inadmissible to establish the allegation of ownership. It follows, therefore, that it would not be permissible to prove what became of the horses after appellant's arrest.

Complaint is also made of the court permitting Chamberlain to testify that one Black came and identified the horses and took them away, and also of permitting Whit Webb, for the State, to testify that he took three of the horses out on the range near Letot, and turned them loose. Under the principle annunciated above we do not think it was proper to admit this testimony.

Appellant also contends that the court erred in permitting the witness Chamberlain to testify that Sheriff Cabell came to him and told him to trade for any horse that defendant brought to him, and that he would see him right. As stated, it was error for the court to admit this testimony unless it was on the issue as to whether or not the witness Chamberlain was an accomplice.

Appellant complains "that the court erred in permitting the witness Chamberlain to testify that defendant came and waked him up, and he went to the jail and waked Rhodes and Work, two deputy sheriffs, and one of them 'phoned somebody, and they went to the stable, where defendant was arrested. Without reviewing this question further than as stated, we think there was no error, because it does not appear that any conversation was detailed by the witness Chamberlain with the deputy sheriffs, nor that any conversation the deputy sheriffs had with the witness Chamberlain was testified to, except the bare notice. We do not think it would be error to permit the witness to testify that he notified the officers, and then to state that the officers were present.

We do not think the court erred in overruling the application for postponement or continuance of this case. No diligence was shown as to the witnesses, and, in the light of the record before us, the evidence is not probably true. Nor do we think the court erred in failing to grant a new trial for the want of the testimony of W.F.M. Hines, on the ground that he was a newly discovered witness, and was not known to defendant before the trial. This does not come within the rules as to newly discovered evidence.

Nor do we think the court erred in his charge on alibi, but we believe the same is a proper presentation or the law of alibi. Nor do we think the court erred in charging the law of principals. We do not think the court erred in failing to charge on recent possession of stolen property, nor that the witness Chamberlain was an accomplice. We have uniformly held that it was proper for the court to submit the issue of accomplice to the jury for their consideration.

We have reviewed all of appellant's assignments of error, and, other than as stated above, we find no error in the ruling and action of the court. For the errors discussed the judgment is reversed and the cause remanded.

Reversed and remanded.