Appellant reiterates his contention that bill of exception No. 3 reflects reversible error, his position being that it is shown in the bill that State improperly elicted testimony from the witness J. L. Augustine tending to show that appellant had been guilty of stealing a quantity of ore from said witness.
According to the testimony of Mr. Augustine, as shown in the bill of exception, appellant asked his permission to take some ore from a dump at a mine near Lordsburg, New Mexico. The witness understood that a small quantity of such ore was to be taken by appellant for experimental purposes, and that the experiments were to be made in the State of Arizona. The quantity of ore to be taken was not designated and the witness had no intention of receiving any remuneration in the transaction. He did not give appellant permission to take two carloads, and if he had known that a large quantity of the ore was to be taken he would have expected to have been paid for it. After he and appellant had their conversation relative to the taking of the ore appellant met him and paid him twenty dollars. He did not know at the time that appellant had taken a carload of ore and that he was going to ship a second car from the mine. If we understand the testimony of the witness, it was to the further effect that he would not have given appellant permission to take a large quantity of the ore in the absence of an agreement as to the price to be paid. Other than the twenty dollars mentioned, he received nothing from appellant to compensate him for the two carloads of ore. The bill of exception shows that witnesses introduced upon the trial testified that at least two carloads of ore were taken from Mr. Augustine's dump near Lordsburg, New Mexico. *Page 507
We are unable to reach the conclusion that proof of the manner in which the ore was obtained from Mr. Augustine was inadmissible on the ground that it tended to show appellant acted dishonestly in the transaction. It has been observed that appellant was jointly indicted with W. F. Carr for swindling the American Smelting and Refining Company of El Paso County, Texas, on or about December 31, 1938. The charge grew out of the shipment to the smelting company of a number of cars of ore represented by the appellant and Carr to be rich in minerals. It was the theory of the State, given support in the testimony, that the purportedly rich ore was, in fact, of little or no value, and that its apparent value was obtained by the process known as "salting" the sample. The State's evidence involved appellant and Carr in the shipment to the smelting company of several cars of ore of little or no value. Two of these cars were from the mine of the witness Augustine near Lordsburg, New Mexico. According to the testimony of the State, with the exception of one car, the samples taken from the several cars delivered to the assayist of the smelting company had been "salted." All of the ore had little value. The samples of the cars shipped from Lordsburg had been "salted." The fraud that was alleged to have been practiced resulted in great loss to the smelting company.
While the two cars of ore which had come from the mine of Augustine in Lordsburg were not charged upon in the indictment, proof that the smelting company had been swindled by the appellant and Carr in the transaction in which such ore was purchased by the company was properly admitted by the court as a part and parcel of the entire scheme which was allegedly used to defraud the company. As said in the original opinion, such proof tended to show system, and was calculated to aid the jury in drawing the inference that the intent of the appellant was fraudulent in the transaction of December 31, 1938, which is reflected in the indictment set forth in the original opinion. The opinion is expressed that it was proper for the State to prove that appellant and Carr had obtained two carloads of ore from Mr. Augustine's mine, and that such ore had little or no value; and, again, that such ore was sold to the smelting company after a "salted" sample prepared or caused to be prepared by appellant and Carr — which indicated that the ore was of high value — was delivered to the assayist of the company. The fact that appellant might have acted dishonestly in obtaining the ore from Augustine afforded no reason for excluding any part of the testimony relating to the entire transaction. *Page 508 Such evidence constituted a detail of the whole criminal scheme. See Claxton v. State, 4 S.W.2d 542. It tended to establish a fraudulent intent as well as system. We quote from 18 Texas Jur., 59, as follows:
"The rule against the admission of evidence of other crimes does not apply where such evidence logically tends to prove defendant's guilt of the crime charged. Stated in another way, evidence which is pertinent and tends to prove the crime alleged is not rendered inadmissible because it also tends to prove the commission of other crimes. But in order that a collateral crime may be relevant as evidence it must be connected with the crime under investigation as part of a general and composite transaction.
"While it is impossible to state the cases in which evidence of extraneous crimes is admissible with categorical precision, generally speaking such evidence is admissible when it tends to establish identity, intent or guilty knowledge, motive, or system, or when other crimes are part of the res gestae."
Appellant again insists that the trial court committed error in failing to submit an instruction covering the law of alibi. We are unable to agree with this contention. It was the State's theory, given support in the testimony, that appellant was a principal although he might not have been present in El Paso at the place where the swindle charged upon in the indictment was perpetrated. According to appellant's testimony, all of his transactions with the smelting company were free of fraud. If appellant was guilty as a principal, notwithstanding he was absent from El Paso upon the occasion in question, a charge on alibi was not called for. See Walker v. State, 181 S.W. 191. The defense of alibi arises when there is evidence that the accused is at a point where he could not have been guilty of participating in the offense. Funk v. State, 208 S.W. 509.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 509