Cooper v. State

• Decision Date: 18 June 1890
• Citation: 13 S.W. 1011
• Parties: COOPER <I>v.</I> STATE.
• Court: Texas Court of Appeals

13 S.W. 1011

COOPER

v. STATE.

Court of Appeals of Texas.

June 18, 1890.

Appeal from district court, Wilbarger county; G. A. BROWN, Judge.

Prosecution for the larceny of a horse. One Shannon testified that he, defendant, Hill, and Roquemore agreed to steal the horse; that the part of the enterprise intrusted to him was to secure defendant's saddle from Holman's livery stable, and take it to his co-conspirators, who were to take the horse at a point on the prairie; that he found the saddle in the gangway of Holman's stable, took it, and carried it to the point agreed upon, when he found Hill, Roquemore, and defendant with Crenshaw's horse; that he delivered the saddle, when it was put on the horse, after which the defendant mounted the horse, and rode off. A few days thereafter the defendant was found in possession of the horse in a county 500 miles distant from Wilbarger county. He explained his possession by claiming to have purchased it in Wilbarger county. A state's witness testified that defendant entered Holman's stable about dark on the evening of the theft, and removed his saddle from a granary to the gangway of the stable. It was proved that defendant was in the town of Vernon, wherein the horse was stolen, on the evening of the theft, about dusk, but could not be found on the next morning. Evidence that, when an indictment for the larceny of the horse was served upon Hill, he said that defendant had no connection with the animal until after it was taken, when he purchased it in good faith, was excluded.

McCall & Britt Bros., C. Wheeler, J. Hall, and N. P. Jackson, for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

There are two counts in the indictment, — the first charging the theft of a horse, and the second the receiving said horse knowing it to have been stolen. In support of the second count, to show that said horse had been stolen by another person than defendant, and before defendant was found in possession of said horse, the state was permitted, over defendant's objection, to introduce and read in evidence an indictment charging one Hill with the theft of said horse, and a judgment of conviction and sentence of said Hill for said theft. For the purpose for which this testimony was admitted, we think it was relevant, and otherwise admissible. Whart. Crim. Ev. § 602. It afforded prima facie proof that the horse had been stolen by Hill at the time defendant came into possession of it.

That said testimony was admitted after the defendant had closed his testimony, and was not in rebuttal of any testimony adduced by him, is not a valid objection on appeal; it not appearing that the trial court abused its discretion, to the injury of the defendant, in admitting said testimony. This...