The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.
The State relied upon circumstantial evidence. Appellant was found in possession of a cow which belonged to Bernard Redmond. Mr. Redmond testified that the animal had been recently taken from its accustomed range. Appellant testified that he got the cow from Gus Booth in exchange for some furniture. Testifying for the State, Booth denied that he had traded the animal to appellant. The State also introduced a witness who gave testimony showing that appellant had made inconsistent declarations as to his acquisition of the cow.
The evidence is deemed sufficient to support a conviction for theft.
It is shown in bill of exception No. 1 that at the beginning of the trial appellant invoked the rule. The witnesses who had been summoned were sworn and required to remain out of the courtroom. Gus Booth, who had not been summoned as a witness, remained in the courtroom and heard all of the witnesses testify. In the development of the State's case in chief, witnesses for the State testified that appellant, while in possession of the stolen cow, had stated to them that he had bought her from Gus Booth. We quote from the testimony of one of the witnesses as follows:
"Allan (appellant) and myself were present there when we had that conversation. I went to talk with him with reference to the yearling and he told me he had bought the yearling and bought it from Gus Booth and had paid him with furniture. He gave me a description of this furniture that he traded to Mr. Booth. He told me that he had traded him a stove and seems like a bedstead and probably some chairs."
After the State had rested the district attorney asked permission of the court to reopen the case for the purpose of introducing Gus Booth as a witness. The request being granted, Booth took the stand and denied that he had traded the stolen animal to appellant. He admitted that he had some furniture in his possession that appellant had owned. He testified, however, that he had paid appellant six dollars for the furniture. Appellant then took the stand and testified that he had traded Booth a bedstead, mattress, cook stove, and other furniture for the stolen animal. Upon learning that Booth had remained in the courtroom and heard all the witnesses testify, appellant called the trial court's attention to the fact that the rule had *Page 330 been invoked and requested that the jury be instructed to disregard the testimony of Booth. The motion was overruled.
Art. 644, C. C. P., reads as follows:
"At the request of either party, the witnesses on both sides may be sworn and placed in the custody of an officer and removed out of the court room to some place where they can not hear the testimony as delivered by any other witness in the cause. This is termed placing witnesses under rule."
In Branch's Ann., P. C., Sec. 344, it is said:
"The admissibility of witnesses who have violated the rule, or who have not been placed under the rule, is a matter addressed to the sound discretion of the court, and, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised."
In the present instance, we think appellant's motion to exclude the testimony of the witness should have been sustained. Manifestly, counsel for the State was aware that witnesses for the State would testify that appellant had stated to them that he had acquired the stolen animal from Booth. Under the circumstances, the witness should have been placed under the rule with the other witnesses at the beginning of the trial. However, he remained in the courtroom and heard the State's witnesses testify concerning appellant's claim that he (Booth) traded the animal in question to him for furniture. The State was then permitted to call the witness to combat appellant's affirmative defense. His testimony concerned the main facts around which the controversy turned. That his testimony was calculated to injure the appellant is manifest. Under the circumstances, we are of opinion that the procedure was not conductive to a fair trial. See Freddy v. State,229 S.W. 533, and Tinker v. State, 95 Tex.Crim. Rep..
The judgment is reversed and the cause remanded.
Reversed and remanded.
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.