Appellant was indicted and convicted of burglary, and his punishment fixed at two years in the penitentiary.
1. Appellant complains that the court erred in overruling his motion for a continuance. As we understand the record, the only evidence of appellant's connection with the burglary was the evidence of John Dawson, that his uncle, the appellant, was absent from home on the night on which the cars were broken open. While the evidence conclusively shows that appellant was receiving the stolen property as fast as it was stolen *Page 551 from the cars, there is no proof of his personal participation in the burglary itself, outside of the above evidence of John Dawson. Now the said witness denies that he himself was concerned in the burglaries; admits that he was keeping the grocery store for his uncle, but says he never had any of the stolen articles for sale at said store. If in fact he knowingly received and was selling stolen property, he was an accomplice. Now by the absent witness appellant proposed to prove that John Dawson was selling the stolen goods, and in the newly discovered testimony it strongly appears that the witness did have in his possession and sell some of the stolen property, if he was not actually concerned in the burglary itself. No testimony of this character was introduced on the trial. True, one of the witnesses on the trial swore that one night he saw John Dawson when he rattled one of the seals of the cars, but the State contradicted this witness on that point at once. Now the court submitted the question of John Dawson being an accomplice in the burglary. The jury, on the testimony before them, may have believed him not so to be, and have found appellant guilty on his simple statement that appellant was absent on certain nights; and it was also upon this testimony, we presume, that the court based its charge of appellant's keeping watch.
We think the court should have granted a new trial, so as to have allowed appellant to show the complicity of John Dawson in the burglaries.
2. We do not think the court erred in admitting evidence of the waybills. There can be no doubt that the waybill which is made out and sent along with each car is evidence tending to prove that the articles therein mentioned were shipped in said car, as stated in said waybill. It is but a reasonable presumption, from the care and accuracy usually characterizing and absolutely necessary to the conduct of the volume of transportation on the railway. The waybills being entries made by proper clerks in their special departments, and in their line of duty, it would not be necessary to produce the clerk making them, nor the person who in fact loaded the packages on the car, nor the merchant's clerk who originally placed the articles in the box before its delivery to the carrier at its depot. 1 Greenl. on Ev., 115, 116. If the original waybills were admissible, but are shown to be beyond the jurisdiction of the court, parol evidence of their contents would be admissible. The entries made by the clerks at the time of examining the contents of the cars to determine if any of the packages were missing, were admissible also as original testimony. But apart from the question of the admissibility of the waybills, we think the evidence sufficient to establish the fact that the cars were burglarized, and the goods found in appellant's house and on his premises were obtained therefrom. The articles found to be missing from car number 4002 was a lawn mower, a box of poultry food, and other articles. This car came on to Paris on the night of March 9, with St. Louis *Page 552 seals unbroken. On the night of the 11th it was broken open. On being afterwards examined, it was found that a box of poultry food was gone, and a box broken open and one lawn mower andtwo handles left in it. The lawn mower found in defendant's house had no handle. The finding of these articles, together with a wagon load of stolen articles plundered from the cars, and hid in every conceivable place about appellant's premises, certainly seems sufficient to remove any question of doubt as to the fact that the lawn mower and box of poultry food were in fact taken from car number 4002, as found by the jury.
3. We do not think the court erred in permitting proof of burglaries prior to and subsequent to the one for which appellant was tried, and the character and kind of articles taken from the cars, most of which were found upon the premises of appellant.
There is quite a difference between separate and independent crimes, though of like character, and a regular system of crime, organized and carried on by a band of criminals, as in the case at bar. Hennessey's case, 23 Texas Cr. App., 340; Nixon's case, 31 Tex.Crim. Rep.; Mason's case,31 Tex. Crim. 309.
From December, 1892, until March 28 there was an almost nightly robbery of the cars, in spite of the watchmen of the company, and the fruits of the crimes were carried to appellant's house and store. It was done by the same persons, appellant giving them half the value, or selling and dividing the proceeds. Appellant was usually absent from his place of business on the nights of the robbery; and his cart and horse were furnished to bring the plunder from the cars to his house. On the night of the 28th of March one of the conspirators was killed while robbing a car, and a raid was immediately made on the premises of appellant, and a wagon load of articles were discovered concealed about his house and yard. The robberies ceased immediately after this night. Many of the articles were identified as coming from the cars. The evidence as to other robberies was controlled by the charge of the court. The object of admitting evidence of other stolen property was clearly explained, and the jury were duly cautioned that in passing upon appellant's guilt or innocence they were limited to the burglary of car number 4002, and appellant's connection therewith.
The charge fairly presented all the issues; but for overruling the motion for continuance the judgment is reversed and cause remanded.
Reversed and remanded.
Judges all present and concurring. *Page 553