Brittain v. State

• Citation: 105 S.W. 817
• Parties: BRITTAIN v. STATE.
• Decision Date: 20 November 1907
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

105 S.W. 817

BRITTAIN v. STATE.

Court of Criminal Appeals of Texas.

November 20, 1907.

Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.

Ben Brittain was convicted of theft from the person, and he appeals. Reversed and remanded.

Nat M. Crawford and Wynne & Collins, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of theft from the person, and his punishment assessed at two years' confinement in the penitentiary.

The facts show: That appellant was running a "frosty joint." He seems to have had a competitor in the frosty joint business, and also another one of the witnesses for the state was running a prescription saloon. Of course, this means that all of the concerns were doing business in a local option territory. The facts indicate that there was rivalry between them on account of competition of these joints and the prescription house. A witness by the name of Acker was selected to entrap appellant into committing the alleged theft. They gave him three marked silver dollars for the purpose of having appellant steal same, and in addition gave him a quarter to go to appellant's place of business and drink frosty. Without going into a detail of these matters, this is the conclusion to be reached from the facts. Acker went to appellant's place and spent the quarter by buying two bottles of frosty; he drinking one and appellant the other. The witness became a little boisterous, and appellant kicked him out of the front door. Later on Acker went into a rear room of appellant's premises and lay down on the bed, which was spread on the floor, and went to sleep. He said he was to play drunk, but he overdid the thing, and in fact did get drunk. That when he was drunk he was crazy; and all the other witnesses so testified in regard to his mental status. He states that when he laid down he had the three dollars in his pocket, and when he came to himself he only had one. Appellant complained to another witness of Acker's presence on his bed. This witness, being a friend of Acker's went after him and took him away. That he was very drunk. Acker knew nothing of this, and stated that, if this witness took him off of appellant's premises and out of this bed, he knew nothing of it at all. He was carried, however, to his friend's place of business, who was running a "frosty joint" also, and later in the evening he wandered upon the streets and was picked up by an officer and put in jail for being drunk. Appellant was arrested for some other offense and placed in jail. He was asked if he had any money on his person, and in response to this question he took money out of his pockets, some paper currency, and five or six dollars, perhaps, in silver, and handed it to the officer, who asked him where he obtained it. Appellant said he took it in during his course of business through the day. Among this silver were two of the three marked dollars; Acker having the other dollar in his pocket. Appellant's theory of this is that one of the dollars Acker passed over the counter in treating others during the day, and one of the dollars he picked up on the floor by the side of his mattress, where appellant had been sleeping. This dollar was returned. This is perhaps a sufficient statement of the case to discuss the questions.

As the judgment will be reversed on other questions, the refusal of the application for continuance and the overruling of the motion for a new trial for refusing said continuance, as well as for alleged newly discovered testimony, will not be discussed, as they cannot arise upon another trial as presented. The witnesses can be obtained.

The state, over objection, was permitted to prove by the witnesses Mallard and Ezell that in the evening, after defendant was arrested, they met in Ezell's saloon, and that Mallard mixed two marked dollars that he had gotten from the defendant with several other dollars, and that Wiley Ezell picked out the two marked dollars from the lot and identified the same. Appellant urged objection to this as hearsay, and acts done and declarations made by officers and other parties in the absence of the defendant. This testimony is clearly not admissible; but the bill is qualified by the court, in which it is stated there was no question made by defendant but that the money he gave Mallard was the identical money that Ezell and others had marked and turned over to Acker. Defendant's counsel did not, even by his manner of cross-examination, question this fact, and defendant was not and could not have been prejudiced by such testimony. Perhaps the court may be correct in stating that under the peculiar circumstances appellant may not have been injured; but that is a matter of speculation, and upon another trial this testimony should not be admitted. We do not feel called upon to pass upon the question whether, under the circumstances stated, it would be reversible.

Another bill recites that on the morning after appellant was arrested, and while being carried to the courthouse, after complaint had been filed against him for theft of Acker's money, defendant told him (Mallard) that he had found one dollar in silver on or near the bed upon...