Appellant was convicted of the theft of a horse, and his punishment assessed at confinement in the penitentiary for a term of five years.
He sought a first continuance for the testimony of the absent witnesses John Fry, Robert Fry, E.H. Messick, and Grundy Caviness.
By John and Robert Fry defendant expected to account for his possession of the horse by proving he bought it from one Scott Keeler, and paid him therefor a valuable consideration. By Messick and Caviness it was expected to be shown that Scott Keeler was in possession of the horse, claiming and controlling him, prior to defendant's purchase of same from Keeler. The continuance was overruled, and this ruling and action of the court constituted one of the grounds of appellant's motion for new trial, which was also overruled. We are of opinion that the court should have granted the new trial for this cause. If these facts be true, or probably true, or if there was a reasonable doubt of defendant's having participated in the original taking of the horse in such manner as to constitute him a principal in the transaction, he would not be guilty of theft, however strong the facts in the case might suggest his guilt of receiving and concealing the horse, after it had been stolen by some one other than himself.
On the trial of this cause, the defendant testified in his own behalf, that he purchased the horse in question from Scott Keeler. For the purpose of impeachment, he was asked, on cross-examination, if he had not stated *Page 101 to Ben A. Ligon that he bought the horse from J.J. Ferguson. He replied that he did not remember to have so stated. It was then shown by the evidence of Ligon that the statement was made by defendant. It was further shown that the defendant was under arrest at the time. The admission of this evidence was objected to, because, "at the time of said conversation the defendant was under arrest for the theft of the horse charged in this case to have been stolen, and had not been previously warned that any statement that he might make would be used against him." We do not think the objection well taken, and the court did not err in overruling the same. It may be here stated that the defendant's real name was Horace Marr, but that he traded for the horse under the assumed name of of J.J. Ferguson.
The statute, article 750 of the Criminal Procedure, relates to confessions only, and does not extend to nor include within its meaning and provision statements exculpatory of the defendant. A confession is inculpatory evidence, which connects or tends to connect the defendant, either directly or indirectly, as a guilty participant in the offense charged. Quintana v. The State, 29 Texas Ct. App. 401[29 Tex. Crim. 401]; Willard v. The State, 26 Texas Ct. App. 126[26 Tex. Crim. 126]; Eckert v. The State, 9 Texas Ct. App. 105[9 Tex. Crim. 105]; Andrews v. The State, 25 Texas Ct. App. 339[25 Tex. Crim. 339].
The statement made by defendant did not admit his guilt, and was not so intended by him when he made it. It neither connected nor tended to connect defendant with the theft, but on the contrary, it was intended to exclude and rebut such inference. Instead of being an admission or confession of his guilt, it was intended as a denial of that fact. Same authorities.
Such statements are made as well for the purpose of showing the absence of guilt as to manifest an innocent connection with the possession of the alleged stolen property by a defendant, and are intended to operate as exculpatory of guilt and crime. This character of evidence is elicited for the purpose of explaining the defendant's possession of the property, when his right thereto is called in question. While contradictory statements made by a defendant, as to his possession of property recently stolen, may be given in evidence, yet such statements have not been not held to be "confessions" of guilt under the statute. If such accounts are to be treated as confessions or guilt, it would not devolve upon the State to disprove them, as a prerequisite to a conviction, nor would the court be authorized or required to charge the jury that such account must be disproved in order to warrant a conviction. Eckert v. The State, 9 Texas Ct. App. 105[9 Tex. Crim. 105]. The State is not required to disprove confessions in order to convict, but must do so when the account given of possession is reasonable and probably true.
We do not think the admitted testimony was a confession within the contemplation of the statute. Code Crim. Proc., art. 750. The testimony *Page 102 having been admitted as impeaching evidence, it is urged that the court committed a fatal error in failing to limit it as such in the charge, and confine it to this purpose only in the trial of the case. This position is not, we think, maintainable. While it was admitted as impeaching testimony, it was clearly admissible as original evidence. It was a statement made by defendant in reference to, and exculpatory of, his possession of the horse charged to have been stolen, but at variance with his own testimony on the trial in respect to the name of the party from whom he bought it. If this be true, the fact that it was introduced as impeaching evidence did not require the charge insisted on. The State was entitled to the evidence as original testimony, as presented on the record now before us. If this be correct, it was not necessary that it should have been limited as impeaching evidence.
Because the court erred in overruling the motion for a new trial, on the ground indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present. Hurt, P. J., dissents; Simkins, J., concurs.