Watson v. State

• Decision Date: 27 October 1943
• Docket Number: No. 22614.,22614.
• Citation: 175 S.W.2d 423
• Parties: WATSON v. STATE.
• Court: Texas Court of Criminal Appeals

175 S.W.2d 423

WATSON v. STATE.

No. 22614.

Court of Criminal Appeals of Texas.

October 27, 1943.

Rehearing Denied December 8, 1943.

Commissioners' Decision.

Appeal from District Court, Armstrong County; Henry S. Bishop, Judge.

Arch T. Watson was convicted for cattle theft, and he appeals.

Reversed and remanded.

J. S. Stallings, of Claude, and Clem Calhoun, of Amarillo, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

Cattle theft is the offense; the punishment, two years in the state penitentiary.

On or about March 29, 1942, J. E. Robinson discovered that his blue roan cow had been stolen from his pasture. Some three weeks thereafter, the hide of the cow was found in possession of Eads, a hide buyer. Eads testified that he bought the hide from Doty. Doty testified that the hide was that of a cow he had purchased, from appellant, on March 30, 1942, which he butchered, after which he sold the hide to Eads.

In addition to these facts, the State showed that, about a week prior to the date of the alleged theft, Adams, the Sheriff of Potter County, called upon appellant and demanded that he pay a balance of something like $50 due by appellant upon fine and costs in some hot check cases wherein appellant had been convicted of the offense of swindling by worthless check. The sheriff warned appellant that, unless the matter was settled within the next few days, he was going to put him in jail. On the day appellant sold the cow to Doty, he had Doty call the sheriff, advising him that, if he would come to Doty's place, appellant would pay the balance due on the fine and costs. Adams sent one of his deputies, Le Neveau, to attend to the matter. When appellant sold the cow to Doty, he executed a bill of sale therefor, and, from the proceeds derived therefrom, Doty, at appellant's request, paid the deputy sheriff a part thereof, and delivered the balance of the purchase price to appellant.

Appellant did not testify as a witness in his own behalf. The testimony of his wife and others was sufficient to show that the cow appellant sold to Doty belonged to him (appellant) and was not, and could not have been, the stolen cow. By the special requested charges of appellant, this defensive issue was submitted to the jury.

Appellant attacks the sufficiency of the evidence to support the conviction. He insists that the open and aboveboard manner in which the sale of the cow was made to Doty, with the execution on his part of a written bill of sale therefor, with full knowledge of and in the presence of a deputy sheriff, constitutes a reasonable explanation of possession by him of the cow, comporting with his innocence.

We are unable to agree with appellant's contention. At no time was appellant's possession of the cow challenged. At no time did he explain — nor was he called upon to explain — his possession of the cow, or how he came to have possession of it. An explanation of possession of stolen property refers to acquisition of property and to how such possession thereof came about. The facts did not constitute an explanation by appellant of his possession of the stolen cow. Moreover, if such testimony be given the construction as being an explanation of possession, the State's testimony was sufficient to overcome any presumption arising by reason of such explanation, for explanation of possession is an inference of fact and not an inference of law. Branch's P.C., Sec. 2465.

The State's testimony shows appellant in the unexplained possession of recently stolen property, fortified by the further fact that he had a motive to steal the property so possessed. Such facts amply authorized the jury to convict.

Appellant objected to all that part of the testimony of the witnesses Adams, Le Neveau, and Doty, showing that the unpaid balance of the fine owed by appellant was on account of his having been convicted of the offense of swindling by worthless check, and that same grew out of some hot check cases, because it was proving the commission by him of another and extraneous crime, in no manner connected with the offense for which he was upon trial.

Ordinarily, and as a general rule, proof of other and extraneous crimes by the accused is not admissible. It is the policy of the law that one accused of crime be tried for that offense alone. However, exceptions to this rule exist, and proof of the commission by the accused of other crimes becomes admissible when such proof tends to establish motive, intent, identity, when such are issues in the case, or when it tends to solve some disputed issue, or when same are a part of the res gestae. 18 Tex.Jur., Sec. 33, P. 61.

Giving effect to the rule stated in the instant case, it appears that the State was warranted in showing that appellant was in need of money as a result of the fine and the warning by the sheriff. Such testimony tended to furnish a motive for stealing and selling the cow, and was pertinent therefore upon a material issue in the case. However, we are unable to see wherein it was material to any issue in the case that the State show also the crime and the nature thereof, of which appellant had been convicted. Proof of such fact...