Appellant complains in his motion because of what he contends would be an unfair rule in that if there be admitted by a ruling of the trial court improper testimony against the defendant, that in the event of the appellant undertaking to combat such improper testimony by testimony relative to the same transaction, such an effort would result in a waiver of the objection to the introduction of the matter first offered. This is a salutary rule and one to which we adhere.
However, upon mature reflection, we are constrained to the belief that we were incorrect in the statement in our original opinion that it was error to admit the testimony of Mr. Colwick that he found not only the 25 goats, alleged to have been stolen from him in January, in appellant's possession, but that he also found in appellant's possession 18 other goats belonging to him, stolen in the month of December previous to the theft of these 25 goats. *Page 621
We think that evidence of other transactions similar in character and surroundings, occuring about or near the time of the instant transaction, would serve a useful purpose in showing the attitude of appellant towards the transaction under investigation. On questions of intent, system, motive or knowledge such proof usually becomes admissible of similar, although disconnected, transactions. See Mehlman v. State,92 Tex. Crim. 455; Hennessy v. State, 23 Texas Crim. App. 340; also see Lytton v. State, 101 S.W.2d 564. We held in Kluting v. State, 90 Tex.Crim. Rep.: "It seems that possession of other stolen property by the accused at the time he is found in possession of that alleged to have been stolen in the case on trial, may be shown for the purpose of being considered as evidence of certain material elements in making out a case of theft or receiving stolen property."
In Padillo v. State, 86 S.W.2d 772, we find the following: "The holding in Mehlman v. State, 92 Tex.Crim. Rep.,244 S.W. 602, militates against the conclusion that proof of the reception of other stolen property by appellant from Tibbetts and Devilla was inadmissible."
We find the following in Wharton on Criminal Evidence, (10th ed.) Vol. 1, p. 135, Sec. 35: "Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge."
Also see note on this subject in 105 A. L. R. 1291; also Jim Hodges v. State, our No. 20,530, not yet reported. (137 Tex. Crim. 527).
We think this case was properly disposed of in our original opinion, and have thus written herein in order that our holdings on the proposition relative to the introduction of other similar transactions for the purpose of showing motive, knowledge, system and intent might not become confusing to those interested therein.
The motion will be overruled. *Page 622