Wright v. State

• Decision Date: 12 May 1897
• Citation: 40 S.W. 491
• Parties: WRIGHT et al v. STATE.
• Court: Texas Court of Criminal Appeals

40 S.W. 491

WRIGHT et al v. STATE.

Court of Criminal Appeals of Texas.

May 12, 1897.

Appeal from district court, Kaufman county; James E. Dillard, Judge.

G. W. Wright and Ellis Wright were convicted of theft of a horse, and appeal. Affirmed as to defendant G. W. Wright, and reversed as to the other defendant.

J. S. Woods and Gossett & Young, for appellants. Mann Trice, for the State.

HENDERSON, J.

Appellants were jointly indicted and tried and convicted for the theft of a horse, and the punishment of each assessed at confinement in the penitentiary for a term of five years; hence this appeal. Appellants filed and presented a plea of former acquittal. On motion of the state, this was stricken out, and the court refused to hear testimony thereon, and this is assigned as error. Appellants were jointly indicted in this case for the theft of a certain horse, the property of, and from the possession of, one J. B. Ward. The plea of jeopardy or former acquittal shows an indictment of the same defendants for theft of a horse, the property of, and from the possession of, Jim Towsen. Appellants insist that the action of the court in striking out said plea was error, and cite us to the following cases: Wilson v. State, 45 Tex. 77; Grisham v. State, 19 Tex. App. 504; Troy v. State, 10 Tex. App. 319. We have examined said cases, and none of them are in point. In Wilson's Case there was a conviction, and not an acquittal, and, besides, the pleadings in that case showed one and the same transaction; or, in other words, the two indictments were of such a character that they were susceptible of being shown to be the same transaction. The rule is that, where such is the case, it is a question for the jury, and not for the court. If, however, the offenses as charged in the two indictments show upon their face that they are legally distinct and incapable of identification by averments, they are separate offenses, and are not capable of being established as the same offense. That is, as was said in Wilson v. State, supra: "The rule to be deduced from the authorities is that, where the offenses charged in different indictments are so diverse as not to admit of proof that they are the same, the court may decide the issue without submitting it to a jury." And see Wheelock v. State (Tex. Cr. App.) 38 S. W. 182. It is further held by the authorities in this state that there is a distinction between a conviction and an acquittal. In a case of conviction, it is held that the state can carve but once; and, where the offense is separable,—that is, when different articles are stolen at the same time belonging to different persons,—the state can combine all of the articles stolen at the same time in the same indictment, or it can carve out such as it pleases, and embody in the same indictment, but a conviction will bar a subsequent prosecution for theft of any of said articles which were taken at the same time. The same principle, however, does not apply in case of acquittal; that is, if different articles are stolen at the same time and place, constituting one transaction, but they belong to different persons, if there are different indictments charging the possession and ownership in different persons, an acquittal under one indictment for theft from one person will not bar a prosecution for theft of different property, or even the same property, from another person; that is, autrefois acquit is only available in cases where the transaction is the same and the two indictments are susceptible of and must be sustained by the same proof. Autrefois convict only requires that the transaction, or the facts constituting it, be the same. See the subject discussed in Wright v. State, 17 Tex. App. 152, and Shubert v. State, 21 Tex. App. 551, 2 S. W. 883.

Applying the principles above stated to the case at bar: The defendants were prosecuted in the former case for theft of a horse, the property of, and from the possession of, Jim Towsen. He could not under said indictment have been convicted of the theft of a horse, the property of, and from the possession of, J. B. Ward. Under said former indictment, whenever the proof showed that the property charged in the indictment was stolen from Ward and not from Towsen, there would be a variance, and the jury would be bound to acquit. In other words, it was impossible for appellants to have been convicted of the theft of a horse the property of, and from the possession of, Ward, when the indictment charged theft of a horse the property of, and from the possession of, Towsen. So from their nature they could not be the same offense. If (as was actually the case in the present instance) two horses are taken by the same parties at the same time and place, from different owners, it night be as to one of said horses there would be some evidence of consent or quasi consent as to the taking, which would authorize an acquittal for the taking of said horse, whereas there would be no consent as to the taking of the other, but such taking was absolutely fraudulent. In such case, we understand the authorities to hold, and upon good reason, that an acquittal for the taking of the first horse would not be a bar to a prosecution for the fraudulent taking of the second horse. On the other hand, if both horses are stolen at the same time and place by the same parties, from different owners, a conviction for the taking of one will bar prosecution for the taking of the other. The doctrine of carving applies, and the state will not be permitted to punish twice for the same offense. In this case we are not apprised what were the circumstances attending the acquittal of the defendants for the taking of the horse of Towsen; but, having been acquitted for the taking of said horse, it is not a bar to a prosecution for the taking of another horse from the possession of another owner, though at the same time and place; and the two indictments showing distinct offenses so diverse as not to admit proof that they are for the same offense, the court did not err in sustaining the motion of the state to strike out the plea of former acquittal.

Appellants assign as error the action of the court in overruling their motion for a continuance. The motion was predicated on the absence of Jesse Wood and Ben Irwin. They proposed to prove by said Wood that the defendants bore a good reputation in the neighborhood where they lived for honesty. Other witnesses testified to this fact, and it is not shown in the application that still others were not accessible by whom their good character could be proved. Something else besides the mere fact that absent witnesses would prove the good character of a defendant for honesty and fair dealing must be shown before a motion for a continuance will be granted for such absent witness.

It is also stated that it was proposed to prove by the witness Wood that he saw said parties on the evening of the alleged theft (which was committed at night) with an order to get some whisky, and that they were very much under the influence of liquor when they started. In our opinion, this proof would not have added anything to that already in the case. The fact that said parties were drinking that night was abundantly shown, but, as we will hereafter show, no amount of such evidence would have availed the appellants.

It was also proposed to prove by the witness Wood that he had a conversation with the main state's witness a few days after the alleged theft, and that said witness stated to said Wood, when they first arrested said defendants, "that defendants stated that they had got under the influence of liquor, and that they did not know whose horses they were; that they did not have any intention of taking them, and converting them to their own use; that they did not know when they came into possession of said horses; that said defendants each gave their proper names to said witness at the time, and stated that they came to Kaufman the night before, and got `tight'; that the horses belonged to somebody near Kemp, but they did not know whom." It is sufficient answer to this to state that the name of the main state witness who made this...