Sawyer v. State , 104 Tex. Crim. 522 ( 1925 )

So uncertain were we as to the propriety of receiving the testimony of the witness Wolfe, and especially the propriety of the special charge given at the state's request regarding this evidence that permission was granted appellant to file a second motion and the mandate withheld.

The special charge referred to is copied in the opinion on rehearing and it is unnecessary to again set it out. The facts upon which it was based is found in Wolfe's testimony as follows:

"I had a business transaction with him (appellant) in the latter part of the fall of 1921 in which said transaction I received some whiskey from him. That was about the middle of November. * * * I got one quart of whiskey from him. I askedhim if he would get me some and he said he would try, and hecame back that evening and gave it to me. I gave him something later on. I didn't at the present time. He said it was four dollars and that is what I gave him. * * * What I told him was that I wanted him to see if he could get me some whiskey. * * * When he brought me the whiskey it was in response to the idea that I wanted him to get me some whiskey. It is a fact thatwhen I did pay him the four dollars that Mr. Sawyer told methat was the price the whiskey cost him, and that he wanted meto repay him the price that he paid for the whiskey which hebrought me."

It is well to have in mind that the transaction about which Wolfe testified occurred some forty days prior to the transaction upon which the prosecution was based and in another town. If appellant had been upon trial charged with the sale of this whiskey to Wolfe it is doubtful if upon the facts stated a conviction would have resulted. They certainly would have raised the most pertinent question whether appellant was acting as Wolfe's agent in procuring the whiskey. The jury would have been required to settle this question against appellant before a conviction would have been authorized. If he was Wolfe's agent in securing the whiskey then in law his act was free from criminal wrong, and had no significance as throwing light upon the subsequent transaction for which he was being prosecuted. If this transaction with Wolfe was free from criminal wrong the mere fact that it related to whiskey would not clothe it with legal probative force in determining his intent or purpose with reference to the whiskey which may have been in his possession forty days later. The charge complained of authorized the jury to consider this transaction with Wolfe regardless of its criminal or innocent character. In other words, the court assumed that it was of such criminal character as authorized the jury to consider it upon the issue of appellant's purpose, or intent with reference to the whiskey he was being prosecuted for possessing forty days later.

It is well settled that evidence of other offenses should not be received even under some exception permitting it when accused on trial is not shown to be the party guilty of committing the offense. Isham v. State, 41 S.W. 622; Williams v. State, 38 Tex.Crim. Rep., 41 S.W. 645; Branch's Ann. Tex. P. C., 100. In Walton's case, 41 Tex.Crim. Rep., he was prosecuted for theft of cattle from one Drummond. Evidence was admitted regarding the taking of certain cattle belonging to Darnell. The court says: "It is shown without controversy that appellant (Walton) had an interest in the Darnell cattle, and was in possession of them, and the most that can be said is that the evidence raises some suspicion that he might have embezzled said cattle. Before this character of evidence could be admitted against appellant there should have been some testimony indicating with a reasonable degree of certainty that appellant was guilty of the theft of the Darnell cattle." We quote also from Fountain v. State, 90 Tex.Crim. Rep.,241 S.W. 489:

"Where 'intent' becomes an issue, proof of other offenses throwing light upon the question is permissible; but before permissible then it must be shown that a prior crime was committed, and with reasonable certainty that accused was the guilty party. Denton v. State, 42 Tex.Crim. Rep.,60 S.W. 670; Williams v. State, 38 Tex.Crim. Rep., 41 S.W. 645; Walton v. State, 41 Tex.Crim. Rep., 55 S.W. 566; Wool v. State, 83 Tex.Crim. Rep., 201 S.W. 1006. For other authorities see Branch's Anno. P. C., Vol. 1, p. 100. We think the admission of all the testimony with reference to an alleged prior offense was error: First, because it does not appear with sufficient certainty that any crime was then committed; second, accused's connection therewith, even if a crime was committed, is not shown with the degree of certainty required."

See also Glen v. State, 76 S.W. 757; Hooks v. State, 97 Tex. Crim. 480, 261 S.W. 1053.

If appellant's transaction with Wolfe was only as agent for the purchaser, it was not a criminal act and would be inadmissible for any purpose upon the present trial. The learned trial judge would not be authorized to assume that it was a sale and therefore permit its consideration on the question of intent. This, in effect, the charge complained of did. It was a charge upon the weight of the evidence and subject to the exception presented on that ground. Neither is the form of the charge to be commended.

We have reached this conclusion after careful review of the authorities. Believing we were in error in our former disposition of the case the judgment of affirmance, and that overruling the prior motion for rehearing, are set aside, and the judgment is now reversed and the cause remanded.

Reversed and remanded.

DISSENTING OPINION.