Sumner v. State

• Decision Date: 05 May 1937
• Docket Number: No. 18890.,18890.
• Parties: SUMNER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 453

112 S.W.2d 453

SUMNER v. STATE.

No. 18890.

Court of Criminal Appeals of Texas.

May 5, 1937.

Rehearing Granted November 24, 1937.

State's Rehearing Denied January 19, 1938.

Appeal from District Court, Lynn County; Gordon B. McGuire, Judge.

Oscar Sumner was convicted of cattle theft, and he appeals.

Reversed and remanded.

Lockhart & Brown, of Lubbock, for appellant.

Truett Smith, Dist. Atty., of Tahoka, Dayton Moses, of Fort Worth, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

LATTIMORE, Judge.

Conviction for theft of cattle; punishment, two years in the penitentiary.

The count in the indictment which was submitted to the jury charged theft of cattle from V. M. Joiner, who was then and there holding same for Edwards & Edwards, who had ranches in Lynn county, Tex., Mr. Joiner being their foreman. The State introduced H. C. Reed, who testified that some time about the 8th of November, 1935, he went out to the ranch of this appellant, where he stayed some time. Among other incriminating testimony, he said that about two weeks after he went to the ranch this appellant and the father of witness began stealing cattle. The first time that he saw any of the T-Bar stolen cattle on the Sumner ranch was about November 15, 1935. The T-Bar cattle belonged to the Edwards. This witness was shown to be an accomplice in that he ate flesh of stolen animals, and the case was submitted to the jury on the law of circumstantial evidence. This witness testified that his father and this appellant appeared to be engaged in stealing cattle, which they butchered at night and the meat of which they sold. He said among the stolen cattle were some cattle of Mr. Brownfield, which were taken at a different time from those belonging to the Edwards, but were butchered, and the meat, hides, heads, brands, etc., were disposed of the same way as were those of the Edwards cattle. This witness testified that his father and appellant would butcher the animals at night, and would cut the brands out of the hides, and would chop up the heads, and cut off the tails and feet, and would throw these articles into a cistern on the ranch or into an earth tank also on the ranch, or would bury them around in different places near the barn, house, etc. Some time in January, 1936, appellant lost his ranch through some sort of court procedure and moved away from it. Other parties took charge of the ranch about the 1st of February, and immediately a search began of the premises, which resulted in locating a large number of mutilated hides with the brands cut out, and in some instances burned, the heads cut off, as also were the feet and tails. These parties found in the cistern and in the earth tank, and buried in various places around the barn, lots, etc., a number of hides, brands, etc., of not only Edwards' cattle but also of Brownfield's cattle. In this connection it is important to state that appellant's defense upon the trial of this case was that during November and December, 1935, he was at his home in Amarillo, or in a hospital in Amarillo, and he was insane at the time. The State also introduced a witness who testified that in November he bought from the elder Reed and appellant certain beeves which they brought to his place already butchered, and which they hung up in witness' place.

The testimony of witness Reed, and also of the witness last mentioned, was objected to on the ground that it related to extraneous offenses and offenses committed at other and different times from that charged in the instant case.

We are not able to agree with appellant's contention found in either of the two bills of exceptions appearing in the record. There are exceptions to the general rule against proving extraneous crimes, which are as well recognized and settled as any other rule of procedure concerning evidence known to this court. Mr. Branch in section 2347 of his Annotated P.C. enumerates the following instances in which proof of other offenses is admissible: (1) When such proof is a part of the res gestæ of the alleged offense for which the accused is being tried; (2) when it tends to show intent when intent is an issue; (3) when it serves to prove identity when identity is an issue; (4) when the case is one on circumstantial evidence, and proof of the extraneous offenses connects or tends to connect the accused with the offense for which he is being tried; (5) when such proof tends to defeat the defensive theories in the case. We have examined not only the cases cited by Mr. Branch in support of the text above mentioned, but also many other cases, and later ones.

In Kelley v. State, 31 Tex.Cr.R. 211, 20 S.W. 365, a case whose facts showed that, when the accused was arrested, a day or two subsequent to the alleged burglary, he was found in possession not only of property taken from the house for whose burglary he was on trial, but also property taken from another house burglarized the same night; and also in possession of property recently taken from still another house in another town. Judge Davidson, writing for the court, said that all this testimony was admissible, and a number of authorities were cited. The evidence relating to the burglary of a house in another town was held admissible as controverting and showing the falsity of the defensive theory advanced by the accused, who claimed that he came by that property honestly. Dawson v. State, 32 Tex.Cr.R. 535, 25 S.W. 21, 40 Am.St.Rep. 791, is a decision of like effect. Fielder v. State, 40 Tex.Cr.R. 184, 187, 49 S.W. 376, exhibits a case where a party of men was going through the country when arrested, and property was found in their possession stolen at various places during a period covering several days, and this court held admissible proof of the various burglaries. See, also, Camarillo v. State, Tex. Cr.App., 68 S.W. 795. In Bright v. State, Tex.Cr.App., 74 S.W. 912, Judge Davidson again writing, held admissible proof that in appellant's possession were found the fruits of several distinct burglaries, the propriety of such admission being based on the opinion in Kelley v. State, supra. In Penrice v. State, Tex.Cr.App., 105 S.W. 797, the same learned judge held admissible proof of the theft of another horse stolen on the same night as the one in the case on trial — both horses being found in possession of appellant later. In that case the accused made an explanation of his possession of said horses consistent with his innocence, but it was held by this court that proof of his possession of the other horse was admissible to rebut his defensive explanation. Again in Johnson v. State, 52 Tex.Cr.R. 201, 107 S.W. 52, the same great judge held that evidence of the finding of the fruits of two separate burglaries in possession of appellant was admissible upon the theory that this tended to connect appellant with the offense for which he was being tried, the case being one on circumstantial evidence.

For holdings same as in the cases above mentioned see Ware v. State, 36 Tex.Cr.R. 597, 599, 38 S.W. 198; Thompson v. State, 90 Tex.Cr.R. 15, 234 S.W. 401; Mehlman v. State, 92 Tex.Cr.R. 455, 244 S.W. 523; Hester v. State, 15 Tex.App. 567; Simpson v. State, 81 Tex.Cr.R. 389, 196 S.W. 835; Cannon v. State, 84 Tex.Cr.R. 504, 208 S.W. 339; Mueller v. State, 85 Tex. Cr.R. 346, 215 S.W. 93; Wilson v. State, 87 Tex.Cr.R. 538, 223 S.W. 217; Miller v. State, 88 Tex.Cr.R. 69, 225 S.W. 379, 12 A.L.R. 597; Thornton v. State, 80 Tex. Cr.R. 64, 188 S.W. 749; Longoria v. State, 80 Tex.Cr.R. 123, 188 S.W. 988; Bateman v. State, 81 Tex.Cr.R. 73, 193 S.W. 666, 3 A.L.R. 1535; Wright v. State, 56 Tex.Cr. R. 353, 357, 120 S.W. 458; and many other authorities might be cited.

In line with the holdings of the cases above mentioned, it appears clear that under more than one of the exceptions mentioned by Mr. Branch the testimony objected to was admissible. This was a case of circumstantial evidence, and the fact of finding in appellant's possession, or on his premises, the fruits of other crimes of similar character, committed in like manner — the evidence of the commission of which was mixed and mingled with the evidence of the commission of the case on trial — tended also strongly to destroy appellant's defensive theory. The evidence of all said crimes was found by parties searching appellant's premises at the time they found the hides, the burned brands, the cut off legs, feet, and tails of the Edwards cattle. The fact that appellant was engaged in butchering and selling cattle in an ordinary and orderly way at the time referred to in said two bills of exceptions, in Lynn county, would also tend to rebut and overthrow the defensive theory that appellant was insane and in a hospital, or at his home in Potter county, at the time these thefts were committed.

The cases cited by appellant in his able brief appear to differentiate themselves on their facts from the case here under consideration. It is a well-settled rule in this State that proof of a separate, disconnected transaction is not admissible unless it comes within one of the exceptions above referred to. The cases mentioned in appellant's brief were held not to...