Conviction for the theft of a yearling. The proof supports the allegation that the property belonged to R.R. Wheatley. It was not necessary to introduce the other Wheatley to prove his want of consent. R.R. Wheatley and his brother were the joint special owners of the property. See, Art. 445, Rev. Code Crim. Proc. The acts and declarations of J.A. Schwen and wife were clearly inadmissible. If there bad been a conspiracy to steal the yearling, it was ended. Again, these acts and declarations were not in furtherance of the common design, but were in the nature of confessions of guilt, with attempts to conceal the fruits of the crime. Being inadmissible, the error is not cured by instructions from the court. No instructions of the court could relieve the case from such an error. It is the duty of the court to pass upon the admissibility of testimony, and riot the jury. If the fact or act is admissible because of another fact, and the latter fact is in doubt or controversy, then the court should instruct the jury, if they believed that fact, then to receive the evidence, but if they do not believe the fact, to reject it. There was no question in this case as to the fact that the conspiracy had ended, nor was any act or declaration done or said by J.A. Schwen, or his wife, in furtherance of the conspiracy. This being true, whether the conspiracy bad ended or not, these acts and delarations were riot admissible. We refer to the acts and declarations occurring at night, in the presence of Sullivan and the other witnesses, in the absence of the defendant, after the animal had been killed. Again, the court admitted testimony tending to show that two calves were stolen by some person living at the Schwen place. The rule upon this subject is that, where the property is taken about the same time, or in the same, transaction, the other stolen property may become fruits of the crime charged, or it may tend to show the motive of the party accused, or it may develop the whole transaction, being a part of the res gestæ; but, unless it serves one of these purposes, it is not admissible. Now, there is no testimony here that these calves were taken about the same time the yearling was. There is no connection shown between these calves and the yearling at all, in any manner, shape or form. Hence the theft of the calves could throw no light upon this case. It would serve the purpose, however, to show that those people were thieves generally, which is inadmissible. Here, again, we find that the court, instead of rejecting this testimony, submitted it to the jury, and then attempted to limit and define its purpose, when in fact no purpose is discoverable. As above remarked, it is the duty of the court to pass *Page 371 upon the admissibility of testimony, and not the jury. See this subject discussed in Musgrave v. State, 28 Tex.Crim. App., 57. As said by the Supreme Court, in Railway v. Levy, 59 Tex. 542 [59 Tex. 542], "The practice of admitting improper evidence with the promise or expectation of subsequently directing the jury not to consider it, or of controlling it by the charge, is not to be encouraged; for, upon minds misdirected in legal investigations, and excited by sympathy aroused by recitals of apparent hardship, such directions or instructions will usually be found impotent to efface impressions once made." This is the rule in civil cases; and it applies with much more cogency to criminal cases. The judgment is reversed and the cause remanded.
Reversed and Remanded.