Cascio v. State

BEAUCHAMP, Judge,

(Concurring).

I am concurring in the reversal of this case, with the observation that proof of other crimes does not become admissible merely because it shows system. This they may do and yet throw no light on any issue in the case on trial. The system used may reflect no important fact further than that the party is a criminal generally. If so, it is not admissible. However, if the system shown throws light on an issue of identity, intention, guilty knowledge, motive, malice, or to rebut a special defense as alibi, when an issue, it may be appropriately shown. The frequent expression that the circumstance of an “extraneous offense is admissible because it shows system” is improper unless the system shown aids the State in an issue in the particular case.

I am of the opinion that the evidence of the breaking of the lock on the car in front of the funeral home was improperly admitted. In the first place, there rests but a mere suspicion that appellant did the breaking, which suspicion, was somewhat aided by proof of the theft of Massey’s tire. On the other hand, proof of the breaking of the lock and of appellant’s presence there at some time during the night had no relationship to the crime charged. The only relation sought to be made is in point of time which may be immaterial, unless some other connection is made. The dissenting opinion says that the transactions were similarly peculiar. I fail to see this because I am unable to discover from the evidence just how the lock was broken on the car in front of the funeral home. The tools used, the manner of breaking and other things which might be characteristic are lacking as to either car. We are merely told that they were broken. The most that can be said is that because appellant and another party were seen near the place where this car was parked and because it was proven that two other cars were *56entered by appellant and tires taken therefrom during the same night it looked suspicious that he was the one that broke that one too. The jury would be apt to so conclude and it would be no reflection upon their intelligence, integrity or honesty of purpose if they did. If prejudicial matters find permanent lodgment in their minds they inadvertently and unconsciously enter into and affect the jurors’ verdict. The knowledge of extraneous facts disclosed by a juror on his voir dire examination disqualify him if it be shown that such facts were of a prejudicial nature. It occurs to the writer that it should be much more serious if such extraneous fact comes to his knowledge after he is accepted as a juror, for he would then apply, it to him more certainly in the consideration of his case.

Mr. Wharton in his Criminal Evidence, Vol. 1, page 120, (10th Ed.) says: “These momentous consequences demand a rigorous enforcement of the rule in criminal charges, that evidence of the collateral offense must never bé admitted, unless the exception can be applied to more certainly demonstrate the truth.”

Holding that collateral facts are generally irrelevant, we quote from Wharton as follows, Vol. 1, page 56, (10th Ed.) : “The reasons for this rule are obvious. One of the fundamental provisions of the Federal and state Constitutions is that the accused ‘shall be informed of the nature and cause of the accusation.’ To admit evidence of such collateral facts would be to oppress the accused by trying him on charges, of the nature and cause of which he has not been informed and which he has made no preparation to meet, and by prejudicing the jury against him through the publication of offenses of which, even if guilty, he may have long since repented, or which may have long since been condoned. Trials would thus be injuriously prolonged, the real issue obscured, and verdicts rendered on collateral issues. To sustain the introduction of such facts, as will be presently shown, there must be some connection established that will bring them into a common system with those under trial.” Supporting this proposition Mr. Wharton cites Cesure v. State, 1 Tex. App. 19, 22; Pinckord v. State, 13 Tex. App. 468, 478; Williamson v. State, 13 Tex. App. 514, 518; Brown v. State, 56 Tex. Crim. Rep. 389, 120 S. W. 444; Saldiver v. State, 55 Tex. Crim. Rep. 177, 115 S. W. 584, 16 A. & E. Ann. Cas. 669; Campbell v. State, 55 Tex. Crim. Rep. 277, 116 S. W. 581; Patrick v. State, 45 Tex. Crim. Rep. 587, 590, 78 S. W. 947.

Another question not presented in the brief has impressed the writer as being applicable here. Mr. Branch says, Article *5752, Section 166, page 99: “When the State’s testimony, if believed, leaves no question as to the intent or identity of defendant, proof of an independent crime is not admissible on issue of intent or identity. Bink v. State, 48 Texas Crim. Rep. 600; 89 S. W. 1076. Davenport v. State, 49 Texas Crim. Rep. 11; 89 S. W. 1077. Harris v. State, 55 Texas Crim. Rep. 478; 117 S. W. 839. Clark v. State, 59 Texas Crim. Rep. 246; 128 S. W. 132. Windham v. State, 59 Texas Crim. Rep. 368; 128 S. W. 1130.” This is supported by the opinion of Judge Davidson in the case of Davenport v. State, 89 S. W. 1077. The accused had played a confidence racket to get a bogus check cashed. The State proved all facts of the case from which a presumption of an intention to swindle the prosecuting witness would arise. It then introduced evidence of another and similar transaction in order to show his intention in the one for which he was being tried. Holding this to be reversible error, he said: “Extraneous crimes can be introduced to establish system, develop the res gestae, and show the intent, when they serve to do so, and they may also be used to identify the party on trial. But it is only where some of these matters are in issue that extraneous crimes are admissible. None of these questions are controverted. The evidence is clear and succinct, if Holder told the truth. Appellant did not deny it, and introduced no evidence.’’ Because of this the evidence was held inadmissible.

There is reason in this rule. If the State is able to make proof upon which it can safely rely without showing the commission of other offenses it should be satisfied with doing so, and they should not be admitted. This will eliminate the danger of juries fixing a punishment suited to the party on trial as a criminal generally rather than to the particular offense with which they are dealing. If the State’s evidence is not clear and positive then the demands of justice and the public interest would warrant the trial court in resorting to proof of other crimes to show system if and when system will aid the State in an issue that has been raised. It is a settled rule that proof of extraneous crimes or another transaction is admissible when a part of the res gestae or when they tend to show intent, when intent is an issue, or to identify or connect the party on trial with the offense charged. Such evidence, however, should be carefully considered for proof of other offenses is not admissible to show intent, identity or res gestae, for which it is most frequently offered, unless an issue has been made on some of these.

In the case before us there is positive proof, undenied, establishing the fact that appellant was in possession of the stolen *58property and that he was attempting to make his escape with it immediately after it was stolen, and under circumstances which would not readily yield to any claim that he had acquired it from another by any legitimate transaction. He offered no evidence to deny or mitigate the offense. There is nothing weak about the State’s case and it occurs to the writer that the rule above mentioned by Branch is applicable here, and that the evidence of the breaking of the lock on the car at the funeral home would not, for this further reason, be admissible, even though it had some characteristics, which we do not find, identifying it as being similar to the crime charged. The fact that two or more distinct crimes may have been committed the same way does not show system. Long v. State, 47 S. W. 363; Barkman v. State, 52 S. W. 69, 72; Smith v. State, 105 S. W. 501. I am unable to see any unusual mark or peculiarity about the commission of the three offenses detailed in the evidence, for they were all done about like they might have been by any two men who should embark on a similar mission.

In the instant case there was no effort to prove an alibi and we fail to find any reason which would make the disputed evidence admissible.

Evidence of his connection with the theft of the tire near Chilton Hall was admissible for identification because the tire he stole there was in his car when the officers took it. The officers said appellant was the driver of the car and the jury could have so found from their testimony. However, they identified a stranger under difficulties. He was driving fast. They saw him from the rear by spotlight. The positive testimony that he was the man who stole the very tire found in his car so soon after the theft distinguishes this incident from the one we consider inadmissible. It was permissible to show that the officers saw him in the car containing the Massey tire, and it is not' our intention to hold this part of the-evidence inadmissible at any place they described.

I concur in the reversal of the case.