Walton v. State

• Citation: 55 S.W. 566
• Parties: WALTON v. STATE.
• Decision Date: 14 February 1900
• Court: Texas Court of Criminal Appeals

55 S.W. 566

WALTON v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1900.

Appeal from district court, Hall county; G. A. Brown, Judge.

W. T. Walton was convicted of cattle theft, and he appeals. Reversed.

Fires & Decker and J. K. Duke, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; and he prosecutes this appeal. A number of errors are assigned, but we will only discuss such as we deem important.

Appellant made a motion to quash the indictment, which contained two counts,—one for theft, and the other for receiving stolen property. The motion to quash the first count is based upon an insufficient description of the cattle; and that of the second count, because of the failure to allege that appellant fraudulently received and concealed said cattle. The court refused to quash the indictment, but gave in charge to the jury only the first count, for theft. We do not believe the motion was well taken as to either of said counts. The description of the cattle in the first count was "twenty head of cattle." This was sufficient. Coward v. State, 24 Tex. App. 590, 7 S. W. 332, and authorities cited in White's Pen. Code, § 1534. The objection urged to the second count was that same did not charge that it was done fraudulently. The indictment, as presented in the record, does contain this allegation, and it is in accordance with the approved form as laid down by Judge Willson. Willson, Cr. Forms, § 512, and authorities there cited. Besides this, if it be conceded that the last count was bad, yet there was no possible error in the action of the court, for all the testimony adduced was admissible under the first count, to show the theft of said animals; and, when the court restricted the action of the jury to the first count, this was all appellant could ask.

During the trial appellant became a witness on his own behalf. The state was permitted on cross-examination to ask him if he did not, at the depot in the town of Memphis, as he was going to his examining trial, and while under arrest, state to the sheriff, and in the presence of Pyle and others: "* * * to be as easy on me as you can. I have the money, and will pay for the cattle." To this question defendant answered that he did not make any such statement, whereupon the state was permitted to introduce Sheriff Whaat, F. L. Darnell, and Theodore Pyle, each of whom testified that at the time and place above mentioned, and while defendant was in custody of the sheriff, he did say to F. L. Darnell: "I am into it. Be as light on me as you can. I have the money, and will pay for the cattle." It was further shown, in this connection, that the sheriff then had defendant in custody, charged with this offense; that said defendant had not been cautioned that any statement he might make would be used as evidence against him. Appellant objected to all this testimony on the ground that he was then under arrest for this charge, that he had not been warned or cautioned by the sheriff, and that the testimony thus elicited from him was in the nature of a confession. We do not deem it necessary here to enter into a discussion of the reasons why said testimony was not admissible, inasmuch as this matter was thoroughly gone into in Morales v. State, 36 Tex. Cr. R. 234, 36 S. W. 435, 846, and the reasons for our decision therein stated. And see, also, Wright v. State, 36 Tex. Cr. R. 427, 37 S. W. 732. This testimony was inadmissible either to contradict defendant,—he being the witness, — or as original testimony against him. And in this instance it was liable to be used, and doubtless was used, by the jury, both as impeaching testimony and as original testimony against appellant, and was of the most damaging character. Being inadmissible, it is unnecessary here to discuss the failure of the learned judge to limit it to the purpose of impeachment. Testimony that is illegal can be limited to no purpose in the case.

Appellant complains that the court admitted certain evidence against him regarding the taking of certain cattle belonging to one Darnell; the ground of objection being that there was no evidence showing that appellant had stolen the Darnell cattle,—much less, that it was a contemporaneous theft with that charged against appellant in this case. The record bears out appellant's contention in both respects. It is shown, without controversy, that appellant had an interest in the Darnell cattle, and was in possession of them, and the most that can be said is that the evidence raises some suspicion that he might have embezzled said cattle. Before this character of evidence could be admitted against appellant, there should have been some testimony indicating with a reasonable degree of certainty that appellant was guilty of the theft of the Darnell cattle. Williams v. State, 38 Tex. Cr. R. 128, 41 S. W. 645. And, in addition to this, the theft of the Darnell cattle must have been shown to have been contemporaneous with the theft of the cattle for which appellant was being tried. James v. State (Tex. Cr. App.) 49 S. W. 401. The court evidently appreciated the difficulty of applying the ordinary rules to this testimony, for, in charging the jury on this branch of the case, he told them that the state had introduced evidence tending to prove the fraudulent appropriation of other...