Long v. State , 39 Tex. Crim. 537 ( 1898 )

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

There is only one question in the case which requires notice, to wit, the admissibility of evidence of other burglaries committed about the same time and in the same neighborhood in which the burglary for which defendant was tried is claimed to have been committed. This evidence was admitted by the court over the objections of appellant. The court, in his explanation to the bill, shows that same was admitted for the purpose of connecting defendant with the commission of the offense charged, and he so instructed the jury, basing the admission of the testimony on the ground that the proof showed a system. Appellant, by his counsel, O.S. Lattimore, has filed an able brief, reviewing the authorities on the subject of the admission of this character of testimony; and he insists that, even where proof of other crimes is admitted, such testimony has been admitted solely for the purpose of shedding light on the intent with which the defendant may have committed the offense for which he is being tried; and he furthermore claims that this was the rule laid down in the Hennessy Case, 23 Texas Criminal Appeals, 340, and that expressions found in cases decided since that time, and purporting to follow it, carrying the rule beyond this, are dicta, or are not supported by the authorities, and not in consonance with correct legal principle.

The general rule on this subject is that evidence of collateral crimes is not admissible. This rule, however, is subject to exceptions; among them, evidence of contemporaneous crimes may be admitted, where such collateral offenses form part of the res gestae of the offense charged, and serve to identify same or to connect defendant therewith. See Whart. Crim. Ev. sec. 31. And collateral crimes, though not contemporaneous, may be admitted in a proper case to show the intent with which the accused may have committed the act charged. And this was the rule laid down in the Hennessy Case, supra. And it has also been said that evidence of collateral offenses may be proven where such offenses form part of a system or part of the transaction in which the act under investigation is involved; and in such a case the evidence may be used to connect or identify the accused with the transaction under investigation. We do not understand by this that the authorities mean that the distinct offenses in nowise connected and not involved in the same transaction charged against the accused may be proven in order to connect him with said charge. Such was the rule laid down in what is known as the Mollie McGuire Cases. See Carroll v. Com. 84 Pa. St., 107. Mr. Wharton, in his work on Evidence, says: "In order to prove purpose on defendant's part, system is relevant; and, in order to prove system, isolated crimes are admissible, from which system may be inferred. The reason for the rule in this and similar cases is that, when once a system, is proven, each particular part of the system may be explained by the other parts which go to make up the whole." Section 32. "When the object is to show system, subsequent as well as prior offenses, when tending to establish identity or intent, can be put in evidence. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral inculpatory facts is immaetrial, provided they be close enough together to indicate that they are a part of a system." Section 38.

Under no rule of evidence with which we are familiar was the testimony in this case admissible. The system claimed by the State was to the effect that, a few days prior to the alleged offense, certain wheat in the neighborhood had been stolen out of a bin, and carried to Fort Worth, by some one, and sold; and also that a few days after the alleged theft, certain wheat in the same neighborhood was stolen from a bin, loaded on a wagon, carried to Fort Worth, and sold. With the first offense, there is no testimony outside of the confessed accomplice tending to connect appellant with the same. With the latter offense, it may be conceded that there is testimony tending to connect defendant with said offense. The State insisted that these transactions formed a part of a system, and were admissible as independent evidence tending to connect defendant with the offense charged, and so corroborate the accomplice. Now, we hold that because an offense has been committed by a defendant in the same manner that the offense charges may have been committed does not constitute this separate offense a part of a system. The fact that two distinct crimes may have been committed in the same way does not, in our opinion, constitute a system, as meant by the authorities treating of this subject. If these independent acts constituted a system, and if proof of such collateral offenses could be offered to connect a defendant with the offense charged, because such other offenses were likely perpetrated in the same way as the one for which he was being tried, then, in every case in which appellant was shown to have committed similar offenses, proof of such offenses could be made in order to identify or connect him with the case for which he was on trial. To illustrate: Suppose A is on trial for the theft of a horse, and the proof should show that it was taken in a particular manner, but there was no proof identifying or connecting A with the theft of said horse; then, in order to connect him with such offense, and to show that he was the guilty party, of the contention of the State be correct, if he had been convicted of the theft of other horses committed in a similar manner, proof of such collateral crimes could be introduced in evidence, as testimony tending to show that he was guilty of the offense charged against him. This we do not understand to be the rule; but this was exactly what was done in this case, — that is, proof of independent offenses was introduced by the State as testimony tending to connect defendant with the main offense, for the purpose of corroborating the accomplice's evidence. There was no proof outside of said collateral offenses that tended to connect defendant with the offense charged, or to corroborate the accomplice. The testimony being inadmissible, the accomplice could not be corroborated in this manner. We hold that the court erred in admitting said evidence for any purpose, and because of its admission the judgment is reversed, and the cause remanded.

Reversed and remanded.

HURT, Presiding Judge, absent.