McAnally v. State

• Decision Date: 26 March 1903
• Citation: 73 S.W. 404
• Parties: McANALLY v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 404

McANALLY v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1903.

Appeal from District Court, Erath County; W. J. Oxford, Judge.

Fred McAnally was convicted of burglary, and appeals. Reversed.

Thompson & Payne, for appellant. Lee Riddle, Dist. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years.

Appellant complains in the second bill that the state was permitted, over his objections, to exhibit and show to the jury certain wrapping paper, which was not used in the store alleged to have been burglarized, and did not belong to said house, and had not been missed out of said house, "to which action of the court permitting said evidence, defendant then and there promptly excepted, for the reasons that same was immaterial, irrelevant, and tended to, and did, prejudice the defendant's case in the mind of the jury." We do not see any error in the action of the court as presented by this bill.

The third bill of exceptions complains of the following matter: "H. B. Sones was permitted to testify, over appellant's objections, that one certain knife found on the person of defendant at the time he was arrested had been owned by his hardware firm, in the town of Dublin, and that he had not sold same to defendant, and that one certain target gun exhibited to witness was the same make of guns kept by him in Dublin; also that certain cartridges were like cartridges kept by his house, and that he had no recollection of selling same to defendant." Defendant excepted, because same was not shown to have been connected with defendant, except the knife, and that none of said articles were claimed to have been taken from the alleged burglarized house, or was in any way connected with the house, or alleged breaking of same; that same was too remote, and did not tend to throw any light on this transaction, was irrelevant, immaterial, and tended to, and did, prejudice the jury against defendant. The court appends the following explanation: "That defendant had testified, as a witness for himself, that he got said knife and gun from a man in Ft. Worth who was running a gunshop and hardware store, and this Sones' evidence was in rebuttal of defendant's testimony; and further it appeared that the Dublin Higginbotham house had been burglarized on Friday night, and the gun, knife, and other things taken therefrom, and on the next night said company's house in Stephenville was burglarized, and defendant lived in Dublin, and left there on the 12:45 a. m. train Friday night, and came to Stephenville, a distance of 14 miles, and the burglary for which he was on trial was committed at Stephenville Saturday night following." The writer apprehends that the learned trial judge admitted this testimony under the authority of Hamilton v. State (Tex. Cr. App.) 34 S. W. 280; Fielder v. State (Tex. Cr. App.) 49 S. W. 376; Hayes v. State, 36 Tex. Cr. R. 146, 35 S. W. 983, and Kelley v. State, 31 Tex. Cr. R. 211, 20 S. W. 365; and, in the opinion of the writer, these cases should be overruled, in view of the disposition of this case. The fact that appellant burglarized the Dublin store of prosecuting witness would not render admissible testimony that he burglarized their Stephenville store on the succeeding night. It does not tend to prove the offense on trial, for appellant may be innocent of one and guilty of the other. He may be guilty of the one on trial, and innocent of the previous burglary. When such extraneous crimes do not go to show intent, part of the res gestæ, or serve to identify the defendant with the crime on trial in some way, they should be rejected and not admitted. If appellant burglarized the house on trial, it is a distinct, substantive crime. If he burglarized the Stephenville store on the night succeeding, this would be a distinct and substantive crime, for which he is amenable to the law. Accused should be tried upon the merits of each case, and criminative facts tending to prove one case are not admissible in the other. This case, in many of its aspects, is similar to that of Denton v. State (Cr. App.) 60 S. W. 670, 1 Tex. Ct. Rep. 567, which is referred to for a further discussion of the matter. It follows, therefore, that the court erred in admitting this testimony.

The fourth bill of exceptions complains of the following: "While the witness Dick Wright was on the stand, he was permitted to testify that he found a coat and some pistols and three razors and wrapping paper in the Hardin lumber yard about one week after defendant was arrested and placed in jail. Defendant excepted to this, because defendant had been in jail for one week prior to the time said articles were found, and same were not identified as articles taken from the store alleged to have been burglarized; that it was irrelevant and immaterial, and prejudiced defendant with the jury." The court appends the following explanation to the bill: "The pistols found were those taken from the burglarized house, and were wrapped in a coat, and was identified as the coat defendant had on on the Saturday morning before the burglary on that night, and defendant when arrested, some thirty minutes after the burglary, had on no coat, but was in possession of some goods that were taken out of the burglarized store; the theory of the state being that defendant hid the goods found wrapped in the coat under a block of shingles in the lumber yard, and that they were not found until a week later." This explanation of the court renders the testimony clearly admissible. The fact that the goods were not found until a week after the burglary would only affect the probative force of the testimony, and not to its admissibility. The fact that appellant was in jail would not, under any circumstances, render the testimony inadmissible.

Over the objections of appellant, the state offered in evidence a coat, wrapping paper, two razors, two boxes of cartridges, two pocketknives,...