Reese v. State

• Decision Date: 12 March 1902
• Citation: 67 S.W. 325
• Parties: REESE v. STATE.
• Court: Texas Court of Criminal Appeals

67 S.W. 325

REESE v. STATE.

Court of Criminal Appeals of Texas.

March 12, 1902.

Appeal from district court, Baylor county; J. A. P. Dickson. Judge.

T. E. Reese was convicted of theft of cattle, and he appeals. Reversed.

Holman & Dalton, A. H. Britain, and J. E. Cockrell, for appellant. J. H. Glasgow and 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 two years; hence this appeal.

Appellant's first bill of exceptions calls in question the action of the court admitting the testimony of Ike Thomas to the effect that after Reese had killed the second beef, which was the one he was charged with stealing, and while the same was being loaded in the hack, defendant was talking about the beef he had killed. Among other things, he said that "when there was a picnic here some time ago, a beef was given by Cobb for the picnic," and that he (Reese) and another man killed the beef for them, and that he (Reese) then killed a calf, and he and the other party divided it, but that "Cobb had thousands of them like these fellows in here in the Crossbar pasture," and waved his hand around. Appellant objected to this testimony because it was a transaction that happened long ago,—too remote, immaterial, irrelevant, and incompetent. Under the authority of Hamblin v. State (Tex. Cr. App.) 50 S. W. 1019, which has since been followed in a number of cases, these objections are too general, and do not sufficiently point out the ground. It is not shown how remote said transaction was, nor does the objection state that it was not connected in any wise with the transaction for which appellant was then being tried. However, if it be conceded that the objection properly raised the question, still it occurs to us that what was said and done by defendant at the time was a part of the res gestæ and this conversation, though it may not directly have related to the beef then being loaded on the wagon, yet it serves 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. And in that respect it occurs to us that it would have been admissible.

The state was permitted to prove by Suttlemeyer that he had a conversation with one Ike Thomas, who was implicated in the theft of this same beef,—said conversation being on the next day after the alleged taking,—in which said Thomas told witness about the taking of the beef, and he gave him a similar account to that which he testified to on the trial. This was objected to on the ground that it was hearsay, not being made in the presence of defendant, and because it was a reiteration of Thomas' testimony from hearsay by a third party, etc. The court explains the admission of this testimony by stating that, when the witness Thomas was on the stand, appellant's counsel propounded certain interrogatories to him, attempting to show that he had been promised immunity by said Suttlemeyer from punishment in consideration of his testifying in this cause, and that the testimony objected to was offered in rebuttal by the state for the purpose of showing that no promise of any sort was made by the said Suttlemeyer to said witness. Said testimony was not admissible. The witness Thomas had not been impeached by showing that he had made a contradictory statement to the testimony given by him on the stand. Rutherford v. State (decided at the present term) 67 S. W. 100. Nor did the explanation given by the court render said testimony admissible. The fact that the state or some officer had offered the witness immunity from punishment if he would testify against Reese, would not authorize the introduction of testimony by said witness corroborating the testimony given by him on the stand. Of course, it would have been...