Cone v. State

• Decision Date: 26 November 1919
• Docket Number: (No. 5500.)
• Citation: 216 S.W. 190
• Parties: CONE v. STATE.
• Court: Texas Court of Criminal Appeals

216 S.W. 190

CONE v. STATE.

(No. 5500.)

Court of Criminal Appeals of Texas.

November 26, 1919.

Appeal from District Court, Camp County; J. A. Ward, Judge.

Gary Cone was convicted as an accomplice to the theft of an automobile, and appeals. Reversed and remanded.

M. B. Briggs, of Gilmer, Bass & Engledow, of Pittsburg, and C. E. Florence, of Gilmer, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted as an accomplice to the theft of an automobile.

The indictment charged that Joe Pullen committed the theft of an automobile from Ike Pitts, and that appellant prior to this theft advised and encouraged Pullen in committing the theft. Pullen testified that he entered into a conspiracy or agreement with appellant to steal automobiles, for which appellant was to pay him $100 a piece; that Pullen was to bring them to appellant; that appellant lived in Upshur county, and it seems that this contract or agreement between them was entered into in that county. Pullen testifies that he went to Mt. Pleasant in Titus county and stole an auto, which proved to be the property of Pitts; that he brought this auto to appellant and turned it over to him. The auto belonged to Pitts and was stolen by somebody, and was subsequently recovered by Pitts in Tyler, Smith county. Pullen testified further that he committed the theft of perhaps as many as three additional autos at intervals covering several months, and that three of these reached appellant; it seems the last one did not, but from the view we take of the case it is immaterial whether it did or did not reach him.

Over the objection of appellant, the evidence with reference to the three other automobiles was introduced in evidence. The court signing the bill of exceptions states he permitted this on the theory that there was a general conspiracy between the parties by which Pullen was to commit theft of autos, appellant receive them, and as long as this conspiracy was pending that all thefts in accordance therewith were admissible in each case. We are of opinion that the court was in error. The matter has been before the court on various propositions and under numerous authorities. It has been held by this court that evidence of extraneous crimes may be admitted to develop the res gestæ, connect the defendant with the case on trial, or to show intent; and also it is asserted as a general proposition that such evidence may be introduced when it tends to show system. It will be observed that the authorities draw a broad distinction between the doctrine of system and systematic crime. This has been the subject of a number of decisions, and the question of system will not apply unless it is for some of the purposes stated. The court, speaking through Judge Henderson, discussed these matters at some length in Long's Case, 39 Tex. Cr. R. 537, 47 S. W. 363. See, also, Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501. That case shows that it was the theory of the state that Smith and Capers entered into a conspiracy to commit the crime of arson as to different houses. Capers testified against Smith, and on the trial the court permitted testimony with reference to the arson of other houses than that charged. This court used the following language:

"These transactions were independent of the one for which this conviction was obtained. The court seemed to believe, from his qualification of the bill, that, if there was a conspiracy to burn houses, this would permit evidence of all the other cases of arson testified by Capers, on the theory of system. Where evidence of an extraneous kind is admitted, it must be to show intent to develop the res gestæ, identity of the defendant, or show system. That a party may be systematically a thief, or destroyer of houses by burning, or in the participancy or execution of a crime, does not necessarily come within the exceptions above mentioned. To prove system in order to identify a party, or to show intent, is one thing; but to prove systematic crime, or that an accused is a confirmed violator of the law, is a very different proposition. And extraneous crimes are not admissible, even under the exception to the rule, unless the testimony comes within one of the exceptions, and this to connect the defendant with the crime for which he is being tried. This evidence does not come...