Newton v. State

• Decision Date: 21 June 1911
• Citation: 138 S.W. 708
• Parties: NEWTON v. STATE.
• Court: Texas Court of Criminal Appeals

138 S.W. 708

NEWTON v. STATE.

Court of Criminal Appeals of Texas.

June 21, 1911.

Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.

Willis Newton was convicted of theft, and he appeals. Reversed and remanded.

J. R. Stubblefield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of the theft of what is charged in the indictment to be "a bale of seed cotton," his punishment being assessed at two years' confinement in the penitentiary.

A brief summary of the evidence is to the effect that a wagonload of seed cotton was stolen from what is known as the "Red Tiger Gin" in Rising Star, Eastland county, and carried to a nearby gin known as the "Farmers' & Merchants' Gin." Roberts testified that he was the manager of the Red Tiger Gin, and had control of it; that on the 4th or 5th of February, 1910, approximately one bale of seed cotton was taken from his gin at night, and that he found it in a wagon under the suction pipe of the Farmers' & Merchants' Gin the following morning; that the mules that hauled the wagon and cotton had been taken from the wagon and were hitched to a nearby post. He undertook to identify this cotton as cotton which had been taken from his gin the night previous. He says at the time he went to the Farmers' & Merchants' Gin he saw appellant and several others standing around the fire in the engine room of the gin. Later during the day, about the time appellant was arrested, he accused him of having some knowledge of the taking of the property, which appellant emphatically denied, and not only so but proceeded to strike him very vigorously with his fist. A man named Carsey testified that he had made a pair of boots each for Dock Newton, brother of defendant, and the defendant; that these were highheel boots, and were made some time prior to the alleged theft; that on the day he ascertained the cotton had been stolen he and Henderson went to the Red Tiger Gin and found some tracks near and in the gin; that they were tracks of two different persons; that these tracks were made by two pairs of boots which he had formerly made for the defendant and his brother; that he knew the tracks just as a man would know his own handwriting; that the soil, in which the boot tracks were made, was a tight sandy soil, and that he could distinguish the imprint of each and every tack, which had been driven in the heels of the boots. It will be noticed in this connection that appellant and his brother, previously to the time that this witness looked at the tracks, had been shown to have been about the house after the discovery of the wagon at the gin. He was permitted to state, in substance, that these tracks were made by the boots that he had made for these two parties. Continuing his testimony, he said there was nothing peculiar about those boots in the making of them; there was no difference between the tracks, so far as the tracks were concerned, as being different from each other; that there was no peculiarity to either pair of boots as far as the track was concerned. Henderson, whom Carsey said was with him, was not placed on the witness stand, and no witness undertook to identify the tracks found near the Red Tiger Gin as being the tracks made by appellant's boots otherwise than as stated by Carsey.

Holland testified he loaned Dock Newton, brother of appellant, the wagon and mules which were found at the Farmers' & Merchants' Gin on the day prior to the alleged theft of the cotton; that the wagon and mules were his, and that when Dock Newton, brother of appellant, borrowed the wagon and mules Dock Newton left his horse with him, the witness stating that, when Dock borrowed the wagon and mules, he desired to haul some cotton from one gin to another gin. Dock's flight was also shown. The state also put in evidence to the effect that appellant left the county, and that he was subsequently arrested in Johnson county going under the name of J. H. Riley. This was testified by the witness Kilborn. It is, however, shown that defendant had remained around the town of Eastland about a week, which was the first week of the sitting of the grand jury, and that the grand jury remained in session little less than two weeks; that at the time appellant was arrested in Johnson county he was working out a fine for a misdemeanor on the county road. Appellant testifying in his own behalf denied any knowledge or complicity with the theft, and explained how he came to be going under the name of J. H. Riley, and in this connection stated that he had never in his life been required to work on the public road as a county convict, and that he was ashamed to have to work on the road as a convict; that he had been convicted for unlawfully riding on a train, and this was the reason he permitted himself to go under an assumed name. He stated he was not a fugitive from justice; that he had remained in Eastland for one week, during the session of the grand jury, awaiting its action; that an officer had informed him that he did not suppose he would be indicted, and he then left and that he had not gone away with a view of avoiding the process of the court. It is further shown that appellant spent the night in the little village of Rising Star the night of the theft at a hotel belonging to the witness Lester; that he had gone to Rising Star with a friend by the name of Basham; that they had taken supper at Basham's and on account of the fact that Basham's residence was crowded with visitors he had gone to Lester's hotel and taken a room in which he spent the night. Lester testified that appellant came there and he assigned him a room, and appellant went to bed; that he saw nothing more of him until some time after sunrise the next morning, when he paid his lodging bill. Young Lester testified that he went to the room occupied by appellant the next morning about sunrise or little after and aroused him, at least called him, and appellant answered, and the witness went away. Appellant testified in this connection, also, that he occupied the room the entire night, knew nothing of the theft of the cotton until the next morning; that about the time he got up his brother came in his room; that he got up and paid his bill and went away; that he and his brother took breakfast at a restaurant owned by a man named Graves; that the first time he had any knowledge of the theft of the cotton his brother told him he thought that he was in trouble about the matter, and that his brother left—he remained and was arrested later during the morning; that after he was arrested Roberts accused him of having had some connection with the theft of the cotton, and he proceeded to use his fist on him rather vigorously, denying any connection with the transaction. There seems to be no question of the fact that the wagon and team belonged to Holland, who lived out in the country a few miles.

The court charged the jury, among other things, as follows: "If the jury believed beyond a reasonable doubt that Dock Newton and others formed a common purpose to commit theft, with respect to the seed cotton, involved in this case, and that such conspiracy was formed, if in fact there was such a conspiracy, and that the defendant entered into the same, if he did do so, at any time before the taking of said seed cotton, if same were so taken, then the acts and declarations of the conspirators made and done in pursuance of the common design after said agreement was entered into by said defendant, if he did enter a conspiracy, and before the taking of such cotton, if same were taken by them, are admissible against defendant; but if the defendant did not enter into such a conspiracy, then you will disregard, and not consider for any purpose, any of the testimony, relating to acts and declarations of the said Newton."

Appellant assigns error upon this charge. The witness Holland testified for the state, as before stated, that on the day prior to the theft of the cotton at night Dock Newton, appellant's brother, came to and borrowed the wagon and mules from him, and left his (Newton's) horse with witness. On the day following he got his wagon and mules at Rising Star. The uncontradicted evidence discloses the fact that the cotton was found in the wagon of the witness Holland. It is further testified by Holland that when Dock Newton borrowed the wagon and mules, that he left his horse with witness, and stated to him that he and Willis (appellant) had some cotton at one of the gins at Rising Star, and that he (Newton) desired to move the cotton from where it was to the other gin, as the gin where the cotton was was to be closed down. The charge of the court informed the jury the acts and declarations of Dock Newton were admissible in evidence and could be considered against the defendant provided Dock Newton and others had formed a purpose to commit theft with reference to the seed cotton involved in this case; also, that if defendant entered into such conspiracy before a theft occurred and a theft did occur, then such acts and declarations of Dock Newton were admissible against the defendant made prior to the theft and in furtherance of a common design. It is contended, among other things, that this charge is on the weight of evidence in informing the jury and instructing them that this testimony or statement of Dock Newton in the absence of appellant could be used against appellant. We are of opinion this was a charge on the weight of evidence. This did not show any conspiracy between the parties so far as appellant was concerned. He was not present, and there is nothing indicated that he knew even that his brother was borrowing the wagon and mules of Holland. The court should not have told the jury to consider this against appellant.

In the case of Bryant v. State, 16 Tex. App. 149, Judge Willson, delivering the opinion of the court, said: "It is not always that the possession of recently stolen...