Greenwood v. State

• Decision Date: 22 January 1919
• Docket Number: (No. 5223.)
• Citation: 208 S.W. 662
• Parties: GREENWOOD v. STATE.
• Court: Texas Court of Criminal Appeals

208 S.W. 662

GREENWOOD v. STATE.

(No. 5223.)

Court of Criminal Appeals of Texas.

January 22, 1919.

On Motion for Rehearing, February 12, 1919.

Appeal from District Court, Titus County; J. R. Warren, Judge.

Annie Greenwood was convicted of theft, and she appeals. Affirmed.

I. N. Williams, of Mt. Pleasant, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

The conviction is for theft. A pocketbook containing about $100 in money was dropped on the floor at a dance at which appellant was present. There was a large number of other negroes present at the dance. There was evidence that appellant picked up the pocketbook; opened it; that it had money in it; that shortly afterwards she went to her home near by. Subsequently the owner of the premises and the pocketbook, discovering its loss, went to the appellant's house and had a conversation with her, in which she admitted that she picked up the pocketbook and said that she gave it to a "long, tall, stray negro." She testified that she picked up the pocketbook, saw something in it that looked like a ticket, and that the "long, tall negro" said that the pocketbook was his, and that she handed it to him. This occurred a very short time after she picked it up. It was shown that after the conversation with the owner she returned to the premises, and she testified that after her return she saw a negro whom she did not know, but whom the evidence showed was Lonnie Bryson; that she asked him if he was the man that she gave the pocketbook to, and that he replied that he was; that she asked him his name and took it down. She was corroborated in reference to this statement by her husband and another witness.

The court in submitting the case to the jury used the following language:

"You are further instructed that if you should find the property in question was found upon the floor of the house of Martin Grant, and that defendant picked same up, believing same to have been lost by some one unknown to her, and that same was shortly thereafter claimed by another, and she gave said property to such other party, then you will find the defendant not guilty."

The appellant offered to prove by Creasy Stanley that she heard Lonnie Bryson say appellant had given him the pocketbook. This was offered as original testimony, according to the qualification to the bill, about an hour after the pocketbook had been lost and picked up by appellant, and his qualification negatives its admissibility as res gestæ. It would, we think, have been admissible in rebuttal of the testimony of Lonnie Bryson contradicting appellant's evidence, or, after he testified, might have been used to impeach him. Offered as it was, however, as part of appellant's original case, we think the conclusion of the trial court that its admission would have been obnoxious to the rule against hearsay is correct. Bowen v. State, 3 Tex. App. 617; Holt v. State, 9 Tex. App. 571; Horton v. State, 24 S. W. 28; Hodge v. State, 64 S. W. 242; note, 131 Am. St. Rep. p. 779.

It is competent for one accused of crime to prove that another committed the offense, when such proof would be inconsistent with the guilt of the accused on trial, but such proof must be made by legal evidence, and is not to be established by the unsworn declaration of another. Dubose v. State, 10 Tex. App. 230. An exception to this rule obtains where the evidence against the accused on trial is wholly circumstantial. Blocker v. State, 55 Tex. Cr. R. 30, 114 S. W. 814, 131 Am. St. Rep. 772; Murphy v. State, 36 Tex. Cr. R. 24, 35 S. W. 174.

The reproduction, for the appellant, of the evidence given by the accused on the examining trial that she had claimed that Lonnie Bryson had admitted he got the pocketbook would have been admissible if offered to support her testimony after it was attacked; but the court's qualification of the bill shows it was not so offered, but was presented as original testimony before any testimony was introduced contradicting her claim on the witness stand that Bryson had made the admission mentioned.

The attempt to impeach the witness Bryson by proof on his cross-examination that he had burned a schoolhouse was contrary to the rule excluding for that purpose specific criminal acts. Branch's An. P. C. § 168.

As explained by the trial judge, the presence in the courtroom during part of the examination of the witness Ed. Greenwood was not error. He appears to have been brought in only for the time necessary to inquire of the witness whether he identified him as the person to whom the appellant handed the pocketbook.

All proper exceptions of the court's charge were met by...