McGee v. State

• Decision Date: 29 January 1902
• Citation: 66 S.W. 562
• Parties: McGEE v. STATE.
• Court: Texas Court of Criminal Appeals

66 S.W. 562

McGEE v. STATE.

Court of Criminal Appeals of Texas.

January 29, 1902.

Appeal from district court, Johnson county; W. Poindexter, Judge.

John McGee was convicted of theft, and appeals. Reversed.

S. C. Padelford and Ramsey & Odell, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of three years.

According to the state's theory, the theft of the cattle of Hunnicutt, the owner, was committed by appellant and one Mercer, in company with one Jack Hubbard, who acted as a detective, in order to entrap and convict McGee and Mercer. According to the state's contention the theft of the cattle was suggested and brought about by appellant and Mercer; that Hubbard engaged in it at their instance, and merely to detect them in the commission of the offense; that Hunnicutt, the owner of the cattle, did not consent for Hubbard who informed him of the proposed theft, to take the cattle, but merely said, "They had better let my cattle alone, but, if they come to get my cattle, go ahead and catch them." Appellant's theory was to the effect that he engaged in the enterprise at the instance of Hubbard, who suggested it, and that it was for the purpose of detecting the Neeley boys, who had a butcher shop in Cleburne; that the project was to take the cattle with the consent of Hunnicutt, the owner, which he understood Hubbard had procured, and dispose of them to the Neeley boys, and have them arrested for violating the law; and that they were to get a reward which had been offered by some persons in that community. This is a sufficient statement of the case to present appellant's assignments.

Appellant's first and second assignments raise an objection to the testimony of Ellis and Jack Hubbard to the effect that Hubbard was acting in the capacity of a detective at the request of Jim Ellis, Armstrong, Lawson, and old man Pierce; that is, at the instance of said parties, some months before the alleged theft, he had come to Burleson, and opened a "joint" where liquor, etc., was sold, in order to ferret out thefts in that community. The court explains the admission of this testimony upon the ground that defendant proved by the witness Hubbard that he had been engaged in running a "joint" at Burleson, and also that appellant brought out that Hubbard was acting as a detective, and the court thought it was permissible to show the capacity in which Hubbard acted throughout, and also to show who employed him to act in that capacity. We are not apprised that Burleson is a local option precinct, unless the meaning of the term "joint" would indicate that it was such. In that event, it is a doubtful proposition that a party can be employed to habitually violate the law in order to detect criminals. Nor do we think that it was proper to show who employed appellant to act as a detective, unless appellant questioned the right of Hubbard to act as such detective.

The fourth bill of exceptions presents the matter of the employment of this detective in a graver light; that is, according to the bill, the state was permitted to prove that the detective came to the town of Burleson, and went into the "joint" business at the instance and request of Ellis and some of the citizens, to get acquainted with Earnest Mercer and John McGee, and see if he could catch them. The court explains this by stating that defendant proved on cross-examination of the witness Hubbard that he had been engaged in the "joint" business in Burleson in the capacity of detective, and the court permitted him to state that he bought an interest in the business and went into it for the purpose of detecting those engaged in stealing, as they frequented this place; that those who employed him suggested this course. As explained, we do not understand that the court negatives the statement in the bill to the effect that the detective was employed by certain citizens to detect appellant and Mercer in the commission of the crime, as the court says he admitted the testimony for the purpose of detecting those engaged in stealing, evidently alluding to the testimony with reference to McGee and Mercer. This, in our opinion, was a mode of getting before the jury hearsay testimony in regard to other offenses of a very damaging character against appellant. Nor do we understand that the attempt by the court in the ninth subdivision of the charge to limit the effect of this testimony to be considered by the jury as showing, or tending to show, the capacity in which said Hubbard acted, and they could not consider the same as any evidence of the guilt of defendant, was calculated to rectify the evil; for it showed that the jury were still authorized to use the testimony as showing that Hubbard had been employed to catch appellant and Mercer, suggesting to them that the community suspected these parties of thefts, and they desired them caught.

The real battle ground on the trial was as to whether or not Hubbard had the express or implied consent of Hunnicutt, the owner, to the taking of the cattle; it being contended by appellant, if he had such consent, either express or implied, and that he engaged with Hubbard and Mercer in the commission of the offense, that the consent given by Hunnicutt to Hubbard was consent to all. On the other hand, the state contends that Hunnicutt did not give his consent to the taking of the cattle, and that Hubbard had neither his express nor implied consent: and that consequently the court did not err in charging as he did on the issues presented by the testimony, or in refusing to give appellant's requested instructions on the subject. The court's charge on this line was substantially as follows: "If you believe from the evidence that the said H. T. Hunnicutt agreed or consented for the defendant or Mercer, or...