Hightower v. State

• Decision Date: 01 January 1858
• Citation: 22 Tex. 605
• Parties: JOSHUA HIGHTOWER v. THE STATE.
• Court: Texas Supreme Court

22 Tex. 605

JOSHUA HIGHTOWER

v.THE STATE.

Supreme Court of Texas.

1858.

The declarations of a party, jointly indicted with the defendant, are not admissible as evidence against the defendant, when there is no proof of a conspiracy between them.

The defendant's motion for a new trial should have been sustained. The whole testimony, taken together, did not implicate him in any offense, or show that the alleged offense was committed in the county where the indictment was found.

APPEAL from Johnson. Tried below before the Hon. Ed. H. Vontress.

The appellant and William Shelly, S. S. Taylor, J. W. Lynn, M. Shelton and Thomas Hightower, were indicted for the false imprisonment of J. Simons. Upon the trial, C. J. Jaco, a witness for the state, testified, “That on the 18th of March, 1857, he went to S. S. Taylor's, and there saw Simons lying down in the corner of the fence, and William Shelly, S. S. Taylor, M. Shelton, J. W. Lynn, Thomas Hightower and Joshua Hightower, standing round about, and he went up to Simons, who got up and started off with him. When they started, William Shelly called to him, and said ‘what are you going to do with our prisoner?’ They were standing about as though guarding Simons. Did not hear defendant say, or see him do anything--saw no guns.”

Profit, a witness for the state, testified, “That Shelly told him, on Tuesday, the seventeenth day of March, and the day after the prisoner was released, they arrested Simons on Sunday, the fifteenth of March, for stealing a hog; that they let him go that evening after taking his gun and knife as security for his return the next day; that Simons went home, and returned the next day; that they let him go the first day, thinking he would run off; that on the second day, Jaco and his party came and released him; that he said they had no warrant.”

Lynn, a witness for defendant, testified, “That he was at Hightower's on Sunday, the 15th of March; that he kept a ferry on the Brazos river; that he was sent for to ferry some persons over the river; that he asked defendant to walk with him to the river; that they went, and found Shelly, Shelton and Taylor, on the opposite side of the river; that they went after them, and ferried them over. On their return they found Simons on the bank; that shortly after, Shelly arrested him (Simons), and charged him with stealing a hog, which Simons confessed; that the defendant had nothing to do with the arrest, but looked on as a spectator;...