Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of three years.
Fred Williamson was permitted to testify that on the day Officer Hammett arrested defendant in Bonham on the charge contained in the indictment, Hammett telephoned him that he "had arrested one of the cattle thieves," and requested witness to come to Bonham and identify certain horses. Witness went to Bonham and at once to the jail where defendant was confined on this charge, and there found Hammett, who ordered him to go to a wagon yard to ascertain if he (witness) could pick out defendant's horses. Witness went, and after walking around awhile inside the yard, which was well filled with horses, selected two which he stated he had seen the "cattle thieves riding in Honey Grove in August, 1897." Well-founded objections were urged to this testimony. The State could not introduce the statement of Hammett that defendant was one of the cattle thieves, nor prove the acts of the witness Williamson in picking out the horses in the absence of defendant, nor the fact that he did so identify them. Cannada v. State, 29 Texas Crim. App., 537. These were opinions of Hammett and Williamson, and matters occurring between them by which defendant was in no way bound; nor could these matters be used as evidence against him, and it is of such a nature as to require a reversal of this judgment. *Page 143
We will not enter into a discussion of the action of the court refusing the continuance. It will not so occur upon another trial, and, if so, the matter will come in a different way.
The charge of the court in reference to alibi is criticised, as well as the refusal to give special instructions in regard to this phase of the law. This charge required appellant's absence, not only from the original taking, but also from the possession of the cattle en route and at Honey Grove. The State relied upon testimony which tended to show the presence of appellant at Honey Grove as one of the two parties in charge of the cattle. Honey Grove was twenty-five or thirty miles from where the cattle were taken. This, and the further fact that the alleged codefendant, Moore, was riding a horse similar to one owned by defendant, constituted the main inculpatory facts. This is a case of circumstantial evidence, depending upon possession of recently stolen property. He may have been in possession of the property after it was stolen, and be guilty only of receiving stolen property, and not of the theft. It was error to charge the jury that it was necessary for appellant to be absent from both the taking and subsequent driving. The alibi did not depend upon the concurrence of both facts. We believe the testimony in regard to other stolen cattle, under the peculiar facts of this case, was admissible. As before stated, the State relied upon circumstances, and these show that the other two animals were found at Honey Grove in possession of two parties. They disappeared at or about the same time as that alleged in the indictment. It was part of the res gestae of the transaction, and it was permissible to show, in developing the case, the possession of the other two animals. The case as to the one charged could not well be made out without showing possession on the part of the parties of the other two animals. The court correctly admitted this testimony. It was properly limited by the charge. The judgment is reversed and the cause remanded.
Reversed and remanded. *Page 144