Cherry v. State

• Decision Date: 25 November 1931
• Docket Number: No. 14525.,14525.
• Citation: 46 S.W.2d 683
• Parties: CHERRY v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W.2d 683

CHERRY v. STATE.

No. 14525.

Court of Criminal Appeals of Texas.

November 25, 1931.

State's Rehearing Denied February 24, 1932.

Appeal from District Court, San Jacinto County; S. A. McCall, Judge.

Bunk Cherry was convicted of theft, and he appeals.

Reversed and remanded.

H. S. Lilley and J. L. Pitts, both of Conroe, for appellant.

Lloyd W. Davidson, State's Atty. of Austin, for the State.

HAWKINS, J.

Conviction is for theft, punishment two years in the penitentiary.

By proper averments the indictment charged that appellant stole $600 from Mrs. L. S. Hues. The state introduced appellant's extrajudicial confession in which he said: "* * * Me and Eldon Hues got Mrs. L. S. Hues' money. Mrs. Hues said she lost about $600.00 but I only got about $200.00 as my part. I was staying at the house of Ellie Hues and Eldon Hues came to my window on a Thursday night 3 or 4 weeks ago and woke me up. Me and him went in the hall and Eldon shoved her door open. We then kept still until everything got quiet and Eldon Hues got the purse and money from under her bed. * * *" The Eldon Hues referred to in the confession was a grandson of Mrs. L. S. Hues. Appellant's mother had married a son of Mrs. Hues. Eldon Hues was also indicted for the theft of the money, but the case against him had been dismissed. Mrs. Hues was about eighty-four years of age at the date of the alleged offense and was dead at the time of the trial.

The state tendered evidence from the justice of the peace and the deputy sheriff to show want of consent on the part of Mrs. Hues to the taking of her money. The evidence was admitted over appellant's objection. The substance of their testimony was that they had been called to Mrs. Hues' home, and that she reported to them the loss of the $600 and made a complaint against appellant for "robbery"; that she signed the complaint herself. This evidence was objected to on the grounds (1) that it brought into the case against appellant the conclusions or opinions of the injured party as to appellant's guilt; (2) that it was hearsay evidence and for both reasons therefore inadmissible. Several bills of exception relate to this subject. The record shows that diligent search had been made for the complaint by the party charged with its custody, and that it could not be found. This would have laid a predicate for proof of the contents of the complaint if it had been otherwise admissible. The learned trial judge admitted all of the evidence mentioned as a circumstance to show want of consent on the part of Mrs. Hues. Ordinarily the state would have had no right in developing its case to have proven either what Mrs. Hues told the officers or that she had filed a complaint against appellant. Melton v. State, 99 Tex. Cr. R. 43, 267 S. W. 979; Lightfoot v. State (Tex. Cr. App.) 35 S. W.(2d) 163.

It is well established that want of consent may be proven by circumstantial evidence if the alleged owner is dead or incompetent to testify. Many illustrative cases will be found annotated under section 2452, Branch's Ann. Tex. P. C. page 1327. We do not understand that because the exigencies of the particular case may force the state to resort to circumstantial evidence to prove want of consent that it changes the general rules of evidence, and makes admissible for that purpose testimony which would be inadmissible under other rules of evidence. In Brown v. State (Tex. Cr. App.) 28 S. W. 536, 537, is found a statement that, where the owner is dead, "* * * the state had a right to prove by his acts and declarations that he had not consented to the taking" of his property. The opinion does not disclose what "acts and declarations" of the owner were under consideration. From later opinions it is clear, we think, that the expression quoted is too broad and cannot have general application. In Nixon v. State (Tex. Cr. App.) 93 S. W. 555, a witness testified that the owner had lost some hogs, and that he (witness) knew the owner was looking for them. As against the objection that this was hearsay, this court said: "* * * It does not appear that he [the witness] derived this information from her [the owner]. Otherwise it must be presumed that the facts to which he testified came under his immediate observation. So we cannot say that the testimony was hearsay." The inference is clear that information which might have come to the witness from the owner would be hearsay. So in this case the officers may have properly testified to what, if anything, came under their observation while they were at the home of Mrs. Hues, but their testimony as to what she said and did was hearsay. In Brooks v. State, 38 Tex. Cr. R. 167, 31 S. W. 410, as a circumstance to show want of consent, the indictment against appellant was admitted in evidence, and the fact proven that the owner of the property alleged to have been stolen appeared before the grand jury and testified as a witness, but not what such testimony was. In Guin v. State (Tex. Cr. App.) 50 S. W. 350, the owner of the alleged stolen property was a convict and could not testify. Certain declarations of his regarding the matter were put in evidence. This court said: "* * * We do not believe that any statements or declarations of his could be used as evidence to prove the theft of said cattle. But we hold that his want of consent to the taking of said cattle...