James v. State

• Decision Date: 08 February 1899
• Citation: 49 S.W. 401
• Parties: JAMES v. STATE.
• Court: Texas Court of Criminal Appeals

Page 401

49 S.W. 401

JAMES v. STATE.

Court of Criminal Appeals of Texas.

February 8, 1899.

Appeal from district court, Hill county; J. M. Hall, Judge.

W. F. James was convicted of theft, and he appeals. Reversed.

McKinnon & Carlton and Smith & Phillips, for appellant. Robt. A. John, for the State.

BROOKS, J.

Appellant was convicted in the district court of Hill county of the theft of money over the value of $50, and his punishment assessed at two years' confinement in the state penitentiary, and he prosecutes this appeal.

When the state's witness Dr. J. F. Myrick was on the stand, it was shown that this offense was committed in December, 1896, and no prosecution was instituted against appellant until March 16, 1898. The state, in order to account for the delay in the prosecution, asked him, "Why did you not have him [meaning appellant] arrested sooner?" To which he answered that he was carrying out the instructions of Tom Bell, who was the sheriff of the county. We believe it was competent for the state to bring out from the witness, on re-examination, this explanation for his delay. The attempt of the defendant was to discredit said witness, because, if a theft had been committed by appellant of his property, he knew it in December, 1896; and under the circumstances, ordinarily, it would be expected that he would have instituted the prosecution sooner. We believe it was competent for him to account for the delay, as was done in this case, by stating that he did so at the suggestion of the sheriff. This testimony was not of a character in itself calculated to prejudice appellant, as in Bennett v. State (Tex. Cr. App.) 48 S. W. 61, but merely to support the witness whose credit had been attacked because of his failure to prosecute sooner.

While the witness Dr. J. F. Myrick was on the stand, the court permitted state's counsel to ask him the following question: "Did you tell Bell whom you thought got your money?" and said witness Myrick answered, "Yes,"—to which question and answer defendant then and there excepted. We think that this testimony was inadmissible, because it calls for the opinion of the witness, and was hearsay, and, in effect, it was bringing before the jury the opinion of the witness as to the guilt of appellant, and was therefore injurious to his rights.

Appellant complains of the court permitting the state's witnesses Miss Alice Myrick and H. C. Myrick, in response to questions propounded by state's counsel, to testify that they missed certain articles of wearing apparel, and found certain articles of wearing apparel belonging to said witnesses in the mattress of the bed occupied by appellant and his wife; and the said H. C. Myrick testified that he saw the defendant wearing an undershirt which he claimed to be his. Said witnesses further testified that said articles had been taken without their consent. Appellant objected to the testimony on the ground that there was no theft shown by appellant of said articles, and that, if said articles were stolen by appellant, they were distinct offenses, and it was not shown that they were taken at the same time the money was taken. The court explained the bill of exceptions by stating "that Mrs. H. C. Myrick and H. C. Myrick testified that they missed the articles of clothing found in the bed about the time the money was stolen, and for that reason the court thought the evidence admissible." It will be noticed here that nothing was said by the court as to the time when the undershirt may have been taken, and his explanation is merely with reference to the clothing found in the bed, and he says that was missed about the time the money was...