Holt v. State

• Decision Date: 24 June 1898
• Citation: 46 S.W. 829
• Parties: HOLT v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W. 829

HOLT v. STATE.

Court of Criminal Appeals of Texas.

June 24, 1898.

On motion for rehearing. Overruled.

For former opinion, see 45 S. W. 1016.

J. M. Wagstaff, W. C. Lasley, and C. M. Christenberry, for appellant. Mann Trice, for the State.

HENDERSON, J.

The judgment in this case was affirmed at a former day of the term, and now comes before us on motion for rehearing. Appellant contends that this court was in error in holding that the testimony introduced by the state, showing that Will Holt was arrested 23 miles west of Abilene on the day after the alleged theft, was admissible, because he says that this arrest of Will Holt showed that he was then engaged in flight, and that it was an act of a co-conspirator, brought to bear against the defendant after the object of the conspiracy had been accomplished. We treated this question in the original opinion, and we there held that the testimony embraced no act or declaration of a co-conspirator in regard to the subject-matter of the conspiracy, but merely showed the arrest of Will Holt. It is now urged, however, that this arrest, after the conspiracy, showed his flight, and was illegal, and was a material circumstance against the appellant. If this contention be sound, and it is not without authority (see Jump v. State [Tex. App.] 11 S. W. 461), then we reply that, according to the testimony in this case, the conspiracy between the parties was not at an end with the commission of the theft. The record shows that the perpetration of the theft was in pursuance of a conspiracy engaged in by defendant, Ell Carter, and Will Holt to have Z. Rubottom steal the money from his father, and that he was to deliver the same to said parties, and they were to take it to Arizona, and invest it for him; and when arrested the parties had evidently some of this same money with them, en route to Arizona. And if it is claimed that the arrest of Will Holt and Ell Carter at Merkel, en route to Arizona, showed flight, and was an act of said parties, liable to be used against appellant, then we say that said act of going to Arizona was embraced in the conspiracy.

Appellant also reiterates his contention with reference to the theft of $40 stolen by Z. Rubottom from his father in May, 1897, and he insists that the court is in error in stating that there was a series of conversations after this between appellant and Z. Rubottom up to the time of the alleged theft, which occurred in December, 1897; and he says that the record shows that appellant was absent from the state from May or June, 1897, until some time in December, 1897, and that this $40 theft was not a part of the system; and the case of Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215, does not apply, as there was no connection between the $40 theft and the $90 theft and the $340 theft. It is true that after the $40 theft in May or June, 1897, appellant was absent from the state until some time in December; but it does appear, if the testimony of Z. Rubottom is to be believed, that appellant suggested...