Dungan v. State

• Decision Date: 23 March 1898
• Citation: 45 S.W. 19
• Court: Texas Court of Criminal Appeals
• Parties: DUNGAN v. STATE.

45 S.W. 19

DUNGAN v. STATE.

Court of Criminal Appeals of Texas.

March 23, 1898.

Appeal from district court, Rains county; Howard Templeten, Judge.

F. M. Dungan was convicted of theft, and he appeals. Reversed.

McMahan & Rodes and Bennett & Thornton, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

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

It appears from the state's testimony that the cattle alleged to have been stolen were taken in pursuance of a conspiracy between A. F. Williams and appellant, Dungan. On the trial, the state introduced P. J. Holbert, who testified that, some time in January or February, 1897, prior to the alleged theft, he had a conversation with one A. F. Williams, and that in said conversation said A. F. Williams stated that the cattle belonged to the defendant, and that defendant did not desire it known for fear Mr. Hudson, who had a judgment against defendant would give him some trouble. This testimony was objected to—First, because defendant was not present nor in the hearing of said conversation; second, because the state had not proven the conspiracy between the defendant and A. F. Williams to commit the offense of theft; third, because said testimony was hearsay, incompetent, irrelevant, and immaterial, and could not be used to bind this defendant. In explanation of this bill, the court states that at the time said statement was made the parties, including the defendant, were going after the cattle, and that he instructed the jury not to consider the evidence, unless they found there was a conspiracy between Williams to steal the cattle. (We presume the court meant by this between Williams and the appellant. The bill, however, does not so state.) On recurring to the charge of the court, we fail to find any such instruction. We understand the rule on the admission in evidence of statements or declarations of one conspirator as against another to be— First, that the conspiracy must be shown; second, that the conspiracy is then pending, its object not having been consummated; third, that such act or declaration must be in furtherance of the common design. There is no question that there was testimony tending to show a conspiracy between Williams and appellant to steal the cattle, and it is immaterial whether this proof was made prior or subsequent to the admission of said evidence. It is also evident that said statement of Williams was made before the object of the conspiracy—that is, the theft of the cattle—was consummated. As stated by the judge, the parties were then en route for the purpose of taking the cattle. The statement of Williams, however, was made not in the hearing of the appellant, and therefore this testimony, if admissible at all, was only admissible as a declaration or act of a co-conspirator pending the conspiracy, and in furtherance thereof. By "furtherance" we understand that the act or declaration must in some measure be in aid of the purpose of the conspiracy, which in this instance was the theft of the cattle. Now, how can it be said that the statement in question was in aid of the theft of said cattle? According to our view, it was merely the statement of the desire...