Reese v. State

• Decision Date: 07 May 1902
• Parties: REESE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 283

68 S.W. 283

REESE v. STATE.

Court of Criminal Appeals of Texas.

May 7, 1902.

Appeal from district court, Archer county; A. H. Carrigan, Judge.

T. E. Reese was convicted of the theft of one head of cattle, and appeals. Reversed.

Holman & Dalton and A. H. Britain, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the theft of one head of cattle, the property of Sidney Webb, and his punishment assessed at confinement in the penitentiary for a term of two years.

This is a companion case to that of Reese v. State, 67 S. W. 325, 4 Tex. Ct. R. 579, decided by us at our recent Dallas term, and the facts are very much like the case of Steed v. State, 67 S. W. 328, 4 Tex. Ct. R. 568. Appellant's second assignment of error complains that the court erred in admitting the testimony of Ike Thomas as to the killing of the Bar X animal in Baylor county as they returned late in the evening from where said Reese had killed the Lazy B animal, in Archer county, early that morning, appellant's objection being that it was a different, independent, and subsequent transaction at a different time and place, and threw no light on the intention with which he killed the Lazy B animal in Archer county; that it was not a part of the res gestæ of the first killing, and could serve no purpose of identity with reference thereto, and was inadmissible for any purpose. The facts complained of by appellant are contained in bill No. 2 prepared by the court, which, among other things, contains the following: "That the witness Thomas testified that about 1 or 2 o'clock p. m. on the same day on which the animal in controversy was killed, defendant stopped the team that they were driving, and said one of the horses was sick. That on the day before this occurrence defendant, in company with I. H. Steed and witness, in a covered hack, came into this Bar X pasture to take a hunt. They camped in that portion of the same which is in Archer county. That defendant killed a calf at camp the next morning, while witness was away from camp. After said animal was killed by defendant, they started home, and stopped for noon, and in the afternoon defendant stopped the hack, saying that one of the horses was sick. Witness and Steed got out of the hack and went hunting quail. Witness saw defendant get his Winchester rifle, and start out southwest from where they were, and when witness returned to where the hack was, he hitched the horses thereto, and started home, defendant not being there. After we started, we heard three rifle shots in the direction defendant started. In a little while we met defendant, having gone about a fourth of a mile, coming towards us. Defendant stated that he had played hell; that he had shot at an antelope and killed a cow; that he guessed he would just have to take it, and pay for it. Witness drove up the road, and found a calf killed, skinned, and dressed. Steed and defendant put the same in hack with the other animal. All this was in the Bar X pasture, in Baylor county. Both animals were killed the same day in the same pasture, and by the same man. In the morning after defendant killed the first one, he told witness it was a deer. The last calf was killed late in the evening. After defendant and Steed put the animal in the hack, Steed said to defendant, `They will know you killed the beef.' Defendant said, `No; they won't, as they will think some damn camper did it.' They also put the head and hide of the last animal in the hack with the first animal; and when we started on, and got to the gate leading out of this Bar X pasture (it was getting dark), Steed got out to open the gate, and I drove through. When we drove through, witness stopped for Steed to shut the gate, and on one side of the hack, about ten steps away, witness heard something fall like a hide, and looked, and saw a man, which witness took for defendant, coming away from the place where witness heard the hide fall. Defendant and Steed then got in the hack, and we went to Seymour, in the night. Before they got out of the Bar X pasture, and after the last animal was killed, defendant asked witness if he remembered when the picnic was given in Seymour seven or eight years ago; that Cobb gave three cattle, and defendant and another was appointed to come out and kill the beeves for the picnic; that they killed a fourth beef, and divided it; and that Cobb was a rich s____ of a b____, just like these fellows, and they would never miss it. This was in the Bar X pasture, and in Baylor county." We think all of this testimony was admissible, and, if the same had been properly limited to the intent and motive actuating defendant, as the law requires, we see nothing of which appellant could legally complain. As indicated by appellant's brief, in the Reese Case, supra, we held that such testimony might serve to illustrate appellant's intent when he remarked, in connection with the killing of this beef, that he had killed other beeves without any right thereto.

Appellant's fourth assignment of error complains that the court erred in admitting, over his objections, the testimony of Ike Thomas, on cross-examination by defendant, that he was promised immunity from punishment before he testified in either the Steed case or in this case, if he would tell all he knew about them; and also, in answer to the state's question, he testified that he told Joe Wheat, county attorney, S. Suttlemeyer, deputy sheriff, and A. L. Board, sheriff of Baylor county, all about this whole transaction before he was so promised immunity from punishment, which was objected to because hearsay, in that it was in defendant's absence, and because it seeks to corroborate Ike Thomas by his own testimony. As indicated, this question was also presented in another form in Reese's Case, supra; but there the question was quite different from that now under consideration. After answering the questions appellant here complains of, the court permitted persons to be introduced and testify as to what the accomplice Thomas did tell them. This, we held, could not be done, since it would be permitting an accomplice to corroborate himself. It is always permissible to prove by a witness that he has been promised immunity from punishment if he...