The only question raised is as to the pertinence of proof relative to the supposed taking of the rings which form part of the property alleged to have been taken by appellant, at a time prior to the one alleged herein. It becomes necessary to make a rather extended statement of the facts in order to make clear the necessity for such proof.
The two diamond rings of Jack Sowell, prosecutrix, were stolen on November 23, 1928, from a two room servant house situated in the back yard of Mr. Rule, which house was occupied by Jack Sowell and her husband, Isaiah. Appellant lived in the same town on Polk Street, and during the summer preceding this theft had cut the grass in Mr. Rule's yard every other week. The rings were never recovered or located after their loss. To support the theory that appellant took them, resort was necessarily had to circumstantial evidence. It was shown that he knew the Sowell woman and her husband and occasionally visited them at night. During the month of October Jack kept her rings in a Boston bag on or in her bed, but in November, at the time of this alleged theft, after the October event herein set out, she had transferred them to a deposit box which she kept in a dresser drawer where her purse seems also to have been kept. In her purse were some fifteen or sixteen dollars. She testified that on November 23rd at about one P. M. she saw appellant leaving her house, which was the only time she had ever seen him there in the daytime. She was working at the time in her employer's house, and said when she got to the back door appellant had gotten through the back yard gate and was outside. She whistled to him, and he "Kind of trotted off — got pearter, did not answer, — kept going, — not to say run but he just peartened up." Going directly to her said house Jack found the room all torn up, the beds turned up, the dresser drawer empty, the purse empty, and the rings gone from the box which had been taken from out said dresser drawer. She further testified that she had been at her house about an hour before to get money out of her purse, and that the room was then in order, and the purse and box were all right and in the dresser drawer. She communicated with her husband and they made search for appellant, going to his house on Polk Street, and looking for him all that day, the next day and all the following week, but did not see him again until he was brought into the court room on February, 1929. Another negro woman testified to seeing appellant go in at the back end of the Rule yard where Jack *Page 453 Sowell lived in November. Still another negro woman testified that appellant roomed at her house and owed her room rent, and on the afternoon of November 23rd, 1928, he came to her house, paid her what he owed her, and told her he was going to leave town for a while. About thirty or forty-five minutes after he left her house Isaiah Sowell came to her house looking for appellant. Isaiah Sowell testified on the trial that somewhere about two-thirty or three o'clock that day he learned of the loss of his wife's rings and went at once to the rooming house where appellant lived and inquired for him, but did not find him.
These facts show that some one took Jack Sowell's rings during the hour that intervened between her two visits to her home, i. e. the visit at a quarter to twelve when she left her room in perfect order, her money in the purse and her rings in the box, in the dresser drawer, — and the second visit at one o'clock after she saw appellant leave her house, when she went out to same and found the room in disorder and the beds turned up, the purse empty, the box taken out of the drawer and the rings gone. Appellant having been seen coming out of said house during said time, — his hurried departure, his refusal to stop if he heard Jack whistle, his appearance at his landlady's house with money, his announced and executed purpose of leaving Amarillo that day, would all be circumstances pointing to him as the guilty party, but as the rings were never seen in his possession, and no showing had thus been made as to his knowledge of the rings, or that Jack Sowell had such property, the evidence might be deemed inconclusive. The following pertinent inquiries might arise: Did appellant know in November that Jack had such rings? Did he know where she kept them? Had he ever seen them? Had he ever shown or expressed any desire for them? Had he ever been in her house before in her absence? If so, for what purpose? How came the beds turned up and the room torn up when the rings were taken? Did this condition evidence a search for these particular rings by some one who knew of their presence and where they had been aforetime kept? These questions could not be asked and answered by her. Her answers would be but opinions deduced from facts which themselves should be narrated to the jury for their deduction and inference, not hers. To shed light, "Turn in on," so to speak, on these material inquiries, the State showed that about October 16, 1928, or approximately a month before this theft, Jack missed her diamonds from the Boston bag kept in or on her bed, also that the same night she missed her diamonds appellant was arrested *Page 454 for drunkenness and put in jail for said offense. The next morning he induced officer Weir, as shown by Weir's testimony, to telephone to Jack that he wanted to see her at the jail. She went down at once and he took her rings out of his pocket, tied up in a handkerchief, and gave them to her. No charge of theft was made against him, but he stayed in jail as a result apparently of his drunkenness charge until November 13th, when he was released. Proof of these facts would beyond doubt shed light on each of the pertinent inquiries above mentioned. If this be true such proof would be admissible even though it might tend to suggest that he took the rings intending to steal them in October. Proof that he took the rings from in or on the bed where she kept them secreted in October, would not only shed light on the fact that he knew she had the rings, and on the fact that he wanted them, but also on the proposition that he searched for them on November 23rd by turning the beds over, etc., and would account for the fact that he persisted in his search about the room until he found them in the dresser drawer. We are not able to differentiate at all between the authorities cited in our original opinion, and are convinced of the admissibility of the proof that he got these rings out of Jack's house in her absence in the daytime on October 16th, and that same forms a proper link in the chain of circumstantial evidence against appellant.
The motion for rehearing is overruled.
Overruled.