LATTIMORE, Judge.
Conviction for theft of property of the value of more than fifty dollars; punishment, two years in the penitentiary.
A negro woman cooked for a family and lived with her husband in a servant’s house adjoining the alley in the back yard. Appellant occasionally cut the grass in said yard and knew said
woman
and her husband. He was charged in this case with theft on November 23rd, 1928, of two rings from said woman. In developing its case the State proved that on October 16, 1928, Jack Sowell, the woman mentioned, missed her rings one night, was phoned to come to the jail the next morning, went, found appellant therein, and was there handed her said rings by appellant who was confined therein on a charge of drunkenness. In the continuous development of its case the State further proved that appellant got out of jail about November 13th, and that on November 23rd at about one o’clock P. M. he was seen by Jack Sowell leaving her house, and that he failed or refused to stop when hailed but instead “peartened up” and left, and that in a few minutes thereafter she went to her house and found same in much disorder and confusion, and that her rings and some sixteen dollars in money were taken. She testified that she was at
the house about an hour before and that the house was in order and the rings and money were there. She had occasion to get some money out of her purse on this trip to her house. After this evidence was introduced appellant demanded an election by the State as to which transaction it would stand on in this prosecution, and the State having elected to prosecute for the transaction of date November 23rd, appellant moved the court to strike from the record all testimony as to the transaction of October 16th, which motion was denied and a bill of exception taken. Substantially the same complaint is made in another bill of exception which is also in the record.
We find in this record an excellent brief on behalf of appellant which shows much care in preparation and effort apparently in ascertaining and stating the law applicable, — a practice which ought always to obtain. All too often appeals come before us from convictions wherein not only the liberties but sometimes the lives of citizens are declared forfeit, whose records show attorneys to have been retained, but in which no briefs appear. We try in all cases to find and apply the law correctly, but our labors are greatly lessened when both parties to the controversy file briefs correctly citing the precedents and authorities relied on to support the respective contentions.
On the contention in this case that the trial court erred in admitting, — in the first instance, and then in refusing to exclude from the jury after the State had made its election, in the next instance, the testimony of what occurred_ on October 16th, appellant cites many authorities, the soundness of which we do not doubt, as laying down general rules rejecting evidence of extraneous crimes and offenses save in certain cases. Many of these authorities assert that the law upholding such proof in the excepted cases, is as well settled as the general rule rejecting it otherwise. We might state here generally that unless the testimony of what occurred October 16th, in the instant case, comes within one of the exceptions named in these authorities, it should have been rejected.
This was a case of circumstantial evidence, and in such case any fact which, when proved, aided in establishing identity, guilty knowledge or connection with the offense on trial, or intent, res gestae, system, etc., would be admissible. As said in Frazier v. State, 246 S. W. Rep. 391:
“Every circumstance reasonably calculated to illuminate the transaction in question, and to make probable the guilty connection therewith of the accused, should be allowed to go to the jury.”
See Thomas v. State, 282 S. W. Rep. 237, and authorities cited. Branch’s Ann. P. C, Sec. 166 and cases cited. We take it that proof which established knowledge on the part of appellant that Jack Sowell owned the rings in question, or that appellant desired same, or had tried to get them, or that he knew of her habit of leaving them in her house while she was away, or that he knew where she kept them,- — would beyond doubt be admissible as relevant; also that the fact that in making such proof the State necessarily developed that appellant had committed another and different theft, would be no sufficient ground for the rejection of such testimony. House v. State, 16 Texas Crim. App. 25; Kelley v. State, 18 Texas Crim. App. 262; Thomas v. State, 103 Texas Crim. Rep. 673. Applying to the facts in this case what has just been said we .find, — the State by circumstantial evidence sought to satisfy the jury beyond a reasonable doubt that about one o’clock P. M. on November 23rd this appellant took from Jack Sowell’s house two diamond rings and some money which were in said house, when she left same about twelve o’clock. That appellant was seen going from, the alley back of said servant house into the yard where said house was situated, was a circumstance; that he was seen leaving said house where he did not live and had no business, at about one o’clock on said date, was another;. that he did not stop or respond when whistled at but quickened his pace, was another; that somewhere between noon and three o’clock of said date appellant paid up some room rent which he owed, would be another; that he told the party with whom he had been rooming that he was going to leave town for a while, was another; that he did leave town, was another. In such case if it could be shown that he knew, before the alleged theft in November, that Jack Sowell owned such rings, and that she kept them in said house, and that she left them there while she was at her work cooking, — these circumstances would materially strengthen the State’s case and add to the probative force of the other circumstances above mentioned. Also if he knew that the rings were kept in a certain place and it should develop that at once after he was seen leaving said house about one o’clock on November 23rd, that said room was inspected and found to be in much confusion and disorder, a condition wholly different from what had prevailed an hour before and indicative of a search, these facts would all become relevant circumstances to be considered by the jury. That appellant knew that Jack Sowell owned such rings, and that she kept them in said house, and left them there when she went to work, — was all supplied by proof
of what occurred on October 16th, when, according to the testimony, he took said rings from said house in Jack Sowell’s absence, and from a place different from the one in which she kept them on November 23rd. Said testimony was admissible. This disposes of appellant’s bills of exception Nos. 1 and 2.
It being relevant to prove that appellant took from said house in October, in the absence of Jack Sowell, said rings, — we do not see how the argument of State’s attorney in effect that in November the defendant completed what he had begun in October, could be deemed dehors the record or of improper effect.
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LATTIMORE, Judge.
Conviction for theft of property of the value of more than fifty dollars; punishment, two years in the penitentiary.
A negro woman cooked for a family and lived with her husband in a servant’s house adjoining the alley in the back yard. Appellant occasionally cut the grass in said yard and knew said
woman
and her husband. He was charged in this case with theft on November 23rd, 1928, of two rings from said woman. In developing its case the State proved that on October 16, 1928, Jack Sowell, the woman mentioned, missed her rings one night, was phoned to come to the jail the next morning, went, found appellant therein, and was there handed her said rings by appellant who was confined therein on a charge of drunkenness. In the continuous development of its case the State further proved that appellant got out of jail about November 13th, and that on November 23rd at about one o’clock P. M. he was seen by Jack Sowell leaving her house, and that he failed or refused to stop when hailed but instead “peartened up” and left, and that in a few minutes thereafter she went to her house and found same in much disorder and confusion, and that her rings and some sixteen dollars in money were taken. She testified that she was at
the house about an hour before and that the house was in order and the rings and money were there. She had occasion to get some money out of her purse on this trip to her house. After this evidence was introduced appellant demanded an election by the State as to which transaction it would stand on in this prosecution, and the State having elected to prosecute for the transaction of date November 23rd, appellant moved the court to strike from the record all testimony as to the transaction of October 16th, which motion was denied and a bill of exception taken. Substantially the same complaint is made in another bill of exception which is also in the record.
We find in this record an excellent brief on behalf of appellant which shows much care in preparation and effort apparently in ascertaining and stating the law applicable, — a practice which ought always to obtain. All too often appeals come before us from convictions wherein not only the liberties but sometimes the lives of citizens are declared forfeit, whose records show attorneys to have been retained, but in which no briefs appear. We try in all cases to find and apply the law correctly, but our labors are greatly lessened when both parties to the controversy file briefs correctly citing the precedents and authorities relied on to support the respective contentions.
On the contention in this case that the trial court erred in admitting, — in the first instance, and then in refusing to exclude from the jury after the State had made its election, in the next instance, the testimony of what occurred_ on October 16th, appellant cites many authorities, the soundness of which we do not doubt, as laying down general rules rejecting evidence of extraneous crimes and offenses save in certain cases. Many of these authorities assert that the law upholding such proof in the excepted cases, is as well settled as the general rule rejecting it otherwise. We might state here generally that unless the testimony of what occurred October 16th, in the instant case, comes within one of the exceptions named in these authorities, it should have been rejected.
This was a case of circumstantial evidence, and in such case any fact which, when proved, aided in establishing identity, guilty knowledge or connection with the offense on trial, or intent, res gestae, system, etc., would be admissible. As said in Frazier v. State, 246 S. W. Rep. 391:
“Every circumstance reasonably calculated to illuminate the transaction in question, and to make probable the guilty connection therewith of the accused, should be allowed to go to the jury.”
See Thomas v. State, 282 S. W. Rep. 237, and authorities cited. Branch’s Ann. P. C, Sec. 166 and cases cited. We take it that proof which established knowledge on the part of appellant that Jack Sowell owned the rings in question, or that appellant desired same, or had tried to get them, or that he knew of her habit of leaving them in her house while she was away, or that he knew where she kept them,- — would beyond doubt be admissible as relevant; also that the fact that in making such proof the State necessarily developed that appellant had committed another and different theft, would be no sufficient ground for the rejection of such testimony. House v. State, 16 Texas Crim. App. 25; Kelley v. State, 18 Texas Crim. App. 262; Thomas v. State, 103 Texas Crim. Rep. 673. Applying to the facts in this case what has just been said we .find, — the State by circumstantial evidence sought to satisfy the jury beyond a reasonable doubt that about one o’clock P. M. on November 23rd this appellant took from Jack Sowell’s house two diamond rings and some money which were in said house, when she left same about twelve o’clock. That appellant was seen going from, the alley back of said servant house into the yard where said house was situated, was a circumstance; that he was seen leaving said house where he did not live and had no business, at about one o’clock on said date, was another;. that he did not stop or respond when whistled at but quickened his pace, was another; that somewhere between noon and three o’clock of said date appellant paid up some room rent which he owed, would be another; that he told the party with whom he had been rooming that he was going to leave town for a while, was another; that he did leave town, was another. In such case if it could be shown that he knew, before the alleged theft in November, that Jack Sowell owned such rings, and that she kept them in said house, and that she left them there while she was at her work cooking, — these circumstances would materially strengthen the State’s case and add to the probative force of the other circumstances above mentioned. Also if he knew that the rings were kept in a certain place and it should develop that at once after he was seen leaving said house about one o’clock on November 23rd, that said room was inspected and found to be in much confusion and disorder, a condition wholly different from what had prevailed an hour before and indicative of a search, these facts would all become relevant circumstances to be considered by the jury. That appellant knew that Jack Sowell owned such rings, and that she kept them in said house, and left them there when she went to work, — was all supplied by proof
of what occurred on October 16th, when, according to the testimony, he took said rings from said house in Jack Sowell’s absence, and from a place different from the one in which she kept them on November 23rd. Said testimony was admissible. This disposes of appellant’s bills of exception Nos. 1 and 2.
It being relevant to prove that appellant took from said house in October, in the absence of Jack Sowell, said rings, — we do not see how the argument of State’s attorney in effect that in November the defendant completed what he had begun in October, could be deemed dehors the record or of improper effect.
The court below in his charge told the jury that they could not convict appellant for the taking of said rings in October, nor at all unless they believed beyond a reasonable doubt that he took them in November, and further undertook to limit the purpose for which testimony of the October transaction was admitted. Appellant excepted to this on the ground that, if admissible at all, said October transaction was admissible as showing guilty knowledge, intent or motive, and that the court should have limited such testimony to the purpose for which it was admitted. No special charge on the subject was submitted or attempted. The purpose of the admission of such testimony was apparent. It was to establish links in the chain of circumstances leading the minds of the jury to a conclusion of guilt by showing that appellant prior to the time of the alleged theft knew that Jack Sowell owned the rings, that she kept them in the - house, and at times when she was away from it. To have fold the jury, as suggested in the exception, that they could consider Such testimony, if at all, only as showing “guilty knowledge or intent or motive,” would neither have enlightened nor aided nor restrained them. There was no affirmative defensive theory of lack of intént, or of innocent connection with said rings. Knowledge that Jack Sowell had such rings, and where she kept them when not at her house, would not of necessity be guilty knowledge, and the inclusion of the things suggested by the exception to the charge, as we view it, might easily have confused the jury more than it could have helped. While not approving the form of charge as given, we are not allowed to reverse, under our statute, for errors in the charge, unless injury appears probable, which we do not believe. We are of opinion the facts herein are sufficient.
The judgment is affirmed.
Affirmed,