Gardner v. State
| Decision Date | 24 February 1909 |
| Citation | 117 S.W. 148 |
| Parties | GARDNER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Callahan County Court; C. D. Russell, Judge.
Math Gardner was convicted of theft, and appeals. Reversed and remanded.
Otis Bowyer and F. S. Bell, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was convicted of the theft of seed cotton of the alleged value of $5 from Mason.
An accomplice by the name of Tom South testified in the case. He says that himself and Gardner went out to the place controlled by one Burleson, and en route stole some sacks from McIntosh; that when they reached Burleson's place they got one sack of cotton from a wagon, and filled the other two sacks with cotton, and carried them from that point, and secreted them in a house on the place of Wyatt Hanks, some five or six miles southwest of Burleson's place. Burleson found his sack, with cotton in it, in this house, controlled by Hanks. A liveryman in the little village of Clyde testified that South hired a buggy and pair of horses, which he said was for himself and Gardner. He further states that South and Gardner drove away in the buggy. One of the liveryman's employés testified that the buggy was returned next morning about 5 o'clock, and that Gardner and South were in the buggy and jointly paid for its hire. South testifies that this is the vehicle that they used in going down to Burleson's and taking the cotton from that point to Hanks'. There was a whip in the buggy, when hired, which was found the following day somewhere in the section of country where the cotton was taken. Objection was reserved to all this testimony, because it did not serve to illustrate or connect the defendant with any of the matters alleged in the information, and did not serve in any way to connect defendant with the theft of Mason's cotton, which was alleged in the information to have been stolen. Some days elapsed between the two transactions; Mason's cotton having been taken on the night of the 9th, and Burleson's on the night of the 14th. South testified that he and Gardner took Mason's cotton, and carried it also to Hanks' place, and put it in the same house in which they placed Burleson's.
There is no corroboration of the accomplice, South, as to Gardner's connection with the taking of Mason's cotton. There was no evidence introduced showing that Mason's cotton was carried to Hanks' place, corroborative of the accomplice, South. Mason could not identify any cotton, nor is there any evidence in the record to...
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