Welhausen v. State

• Decision Date: 03 February 1892
• Citation: 18 S.W. 300
• Parties: WELHAUSEN v. STATE.
• Court: Texas Court of Appeals

18 S.W. 300

WELHAUSEN v. STATE.

Court of Appeals of Texas.

February 3, 1892.

Appeal from district court, Webb county; A. L. McLANE, Judge.

G. A. Welhausen was convicted of the theft and illegal branding and marking of a certain yearling, and appeals. Reversed.

Bethel Coopwood, for appellant. Richard H. Harrison, Asst. Atty. Gen., for the State.

HURT, J.

Appellant and one King were jointly indicted for the theft of a certain yearling alleged to be the property of Danio Sanchey. The indictment also contained a count for illegal branding and marking a certain head of cattle, the property of said Sanchey. There was severance, and appellant was placed on trial and convicted of illegal branding and marking. When the trial began, counsel for appellant moved the court to require the state to elect which of the two offenses the prosecution would proceed upon. This was refused, and exceptions duly reserved. When the state had introduced all of its evidence, the motion was renewed, and was again overruled, and exceptions taken. In support of these motions we have an argument from Mr. Bethel Coopwood, which cannot be excelled for research and cogency. We believe, however, that the same question might have been raised by a motion to quash. Then, if the indictment would not be bad on a motion to quash, the ruling of the court upon the motions that were made would be correct. We have held that, if the same transaction is referred to, a count for theft and one for illegal branding and marking could properly be inserted in the same bill, though these two offenses be not the same; or that the principles announced in the other cases would sustain such a holding. We have not the time to elaborate the proposition, but it is believed to be sound. It is not at all free from doubt.

There was evidence introduced tending to prove other thefts and illegal brandings, and to this objection was urged, and bills reserved. We have very carefully examined the statement of facts, and cannot perceive upon what ground this evidence was received under the facts of this case. It did not tend to identify the transaction, nor to prove the identity of the yearling branded and marked, nor to prove the intent of appellant. The appellant did not claim the yearling of Sanchey, nor did he claim that there was any mistake in the transaction. If such had been his claim, still the evidence relating to the other cattle fails to show that, if taken, they were taken at the same time, or branded at the same time. This being so, we cannot comprehend how or for what purpose the evidence was admitted. It may be contended that the court rendered it harmless by instructing the jury to disregard it. The lance may have been withdrawn, but the wound remained nevertheless. Such evidence is admissible for certain known and legitimate purposes, to-wit, to develop the transaction, to identify under certain circumstances the animal in question, to show fraudulent intent; but to serve any purpose the proof must show that the other animals or property were taken at least about the same time, and from the same place, or so near thereto as to constitute the same transaction. When, under these circumstances, such proof is received, the appellant cannot complain because other crimes are shown. Let it be supposed, however, that proof of other crimes, contemporaneous with and a part of the same transaction, be offered. This evidence of other crimes would still not be proper evidence unless required for the purposes above stated. If the different offenses be so closely connected that proof of one necessarily discloses the other, the state would have the right to disclose both to the extent of their necessary connection.

Not infrequently records coming before this court impress the writer with the belief that some trial judges are of opinion that, though such evidence of distinct separate crimes may not serve the specified purposes, still it will be harmless if...