HOLT v. THE STATE

J.M. Wagstaff, W.C. Lasley, and C.M. Christenberry, for appellant. As to the first objection to the indictment, appellant insists that the names Rubotton and Rubottom are entirely distinct and separate names. They are not idem sonans, but are entirely distinct persons in law. The allegations are, that the property taken without the consent of a different man to the alleged owner, and hence no offense is charged against anyone. The error is more fatal and apparent in the latter part of the count, where the pleader attempts to charge appellant with encouraging the theft. The indictment charges him with encouraging Z. Rubotton to commit the crime of theft — an entirely different person to the one charged with committing the theft. Brown v. State, 11 S.W. Rep., 1022; Favor v. Robinson, 46 Tex. 204.

As to the second objection to the indictment, we admit the pleader followed the form laid down in Willson's Criminal Forms, but it does seem to us that if the part of the indictment charging appellant with advising and encouraging the theft is not a district count, then there is but one count in the entire indictment. It says: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present in and to said court," etc, This language is suitable and applicable to a separate and distinct count. Would not the proper language be "and the grand jurors further present that Deat Holt," etc. This objection to us seems well taken, although we confess that we know of no authority on the subject. It seems to us that the language, "do further present in and to said court," implies the beginning of a new count and separation from that part of the indictment which precedes. With these observations, we submit that the conviction could not be legally had, and that appellant's motion in arrest of judgment should have been sustained. Appellant also filed a motion for a new trial, which was overruled, and to which ruling defendant duly excepted. The errors complained of below were urged in said motion, and they were all excepted to on trial with perhaps one exception.

The record shows that after the evidence was in, and the counsel for both State and defendant had argued the case, the court read his charge to the jury, and that the court, without objection from State's counsel, submitted to the jury the first count in the indictment only, to wit, the count charging defendant with receiving stolen property, and as the jury were about to retire, defendant's counsel moved the court to exclude all evidence from the jury and instruct them to return a verdict of not guilty as the first count in the indictment was fatally defective. The court considered the motion and refused to grant it, but withdrew his charge to the jury entirely, and wrote another charge and submitted a different offense as charged in third count and on which defendant was convicted. Defendant excepted to the action of the court as shown by bill of exceptions number 1.

It seems to us that this action of the court was wholly unauthorized by law and reason. The State had made and had rested its case on the first count. The action of the court, without objection from State's counsel, was an election to stand on first court in the indictment. The jury had received the law from the court. The appellant was then entitled to a verdict on that count, and the effect of the charge was a waiver by the State of the other two counts in the indictment. The State had elected to stand on the first count in the indictment as effectually as if a dismissal had been made as to the other two counts in the indictment. Dalton v. State, 4 Texas Crim. App., 333; Parks v. State, 29 Texas Crim. App., 597; Powell v. State, 24 S.W. Rep., 515.

After an election has been made, either expressed or implied, the State was bound by it. The two offenses charged in first and third counts are entirely distinct crimes, although connected with same transaction. After an election has been made, defendant is entitled to a verdict on the particular count on which the State relies. As to the case at bar, a verdict of not guilty on the first count would not have barred the offense charged in the third count, if the action of the court is correct. On the other hand, a verdict of not guilty on third count would not have barred the offense charged in first count, although the jury had been charged, and although the indictment may have been perfect. If the court's action here is correct, then a man may be tried as many times on the same indictment as there are counts in the indictment. If submitting a single count in the indictment is not an irrevocable election by the State, then could defendant plead former acquittal of the counts not submitted in the counts charged at the time he was convicted on the count submitted.? The State could try a man on one count, and if there was an acquittal it could then say there has been no election and put defendant on trial on other counts in the indictment. It is true in this cause the court says in the bill that the charge was not given manually to the jury. We take it that be that as it may the principle of law is the same. The jury had been charged and the court had no right to withdraw the charge. Williams v. State, 35 Tex.Crim. Rep..

No objection was made to the charge, either by appellant or State. The withdrawal of the charge was not for correction or modification, but for the purpose of withdrawing the offense charged from the jury. If the court had a right to withdraw the charge after submitting it to the jury, would he not have the right to resubmit the same charge? If this right existed, would he not have the right at any time to withdraw the charge and admit additional evidence in the case, and then submit same charge again? To put an extreme case, if this right existed could not the court withdraw the charge, even after the jury had agreed on a verdict, and submit a different count to the jury? If the right of the court be conceded to withdraw entirely from the jury an offense after it has been submitted, there is but little limit to power of the trial court. The door is thrown open to fraud and oppression if there should be judges who would be disposed to act in this manner. We do not charge any improper motive whatever to our honorable district judge. His character and integrity are above reproach. However, in this case, after he had withdrawn the charge, as shown by the bill of exception, he offered to permit either the State or appellant to offer new evidence and to reargue the case. This is in direct conflict with Williams v. State, supra. This is an illustration of the evil that might result from this power of the judge. If this power was given the court, then at any time the State finds out it has not sufficient evidence, it can withdraw the charge, reopen the case, admit new evidence, reargue the case, and the court recharge the jury. Appellant insists that the submission of the first count in the indictment was equivalent to an acquittal on the other two counts. He had been in jeopardy in those two counts, and when the State abandoned them and relied on first count, he was entitled to an acquittal on the two counts not submitted.

Again, appellant submits that a fatal error was committed by the court in permitting Z. Rubottom to testify that in May or June, 1897, about nine months prior to the alleged offense, appellant advised and encouraged him in several conversations to steal from his father W.F. Rubottom. Z. Rubottom testified over defendant's objection "that he stole $40 in gold, and prior to that time, in several conversations, appellant asked him if his father was not rich, and if he did not have a great deal of money, and he replied not; and appellant asked him if his father ever gave him any money, and he replied very little; and appellant told him that if he were in his place he would help himself. The first conversation was in January or February, 1897, and he had several conversations between that and June, 1897," The witness detailed all the facts leading up to the theft of this $40 in June, 1897. The court says in explaining the bill, that "this evidence was admitted as being in its nature the inception of a series of acts and conversations resulting in the final theft charged," and in explanation of conversations defendant had afterwards with Z. Rubottom, and further on to show that in subsequent conversations that it was appellant's intent to induce Z. Rubottom to steal the money charged in the indictment. Take in this connection the charge of the court as shown in the bill of exceptions number 2, where the court tells the jury what effect should be given this evidence. He tells the jury this evidence already complained of was admitted for the purpose of determining appellant's knowledge and intent in his connection, if any, with the money described in the indictment. This charge was excepted to at the time, and brought to court's attention on motion for new trial. If abstractly correct, it was a charge on weight of the evidence in this case, as it virtually told the jury that they could find that appellant had an evil intent in the crime charged because he had been guilty of another crime nearly a year before this. It seems to us that the court's explanation of the purpose of the evidence, and his charge as to what it could be considered for, is sufficient to show the fatal error of this evidence. This evidence had no connection with the crime charged. It was nine months prior thereto, and at a time when Will Holt and Ell Carter were in Arizona. The only part of this $40 transaction, if any at all, that was admissible was the fact that Z. Rubottom stole the $40, and afterwards informed appellant of that fact.

The fact that appellant advised him to steal it would throw no light on subsequent conversations with Z. Rubottom, except to prejudice the minds of the jury, and to make them believe that because appellant had been guilty of a crime nine months before, he was guilty of the crime charged. In our opinion this evidence, intensified by the court's charge, was a violation of all the rules of criminal evidence. It permitted the proof of a distinct offense to show that appellant was guilty of another offense, and was also calculated to prejudice the jury and prevent a fair trial on legal evidence. The charge of the court intensified the error, as it told the jury that appellant's guilty connection with a distinct offense was evidence showing an evil intent in regard to the crime charged, and was also on the weight of the evidence. Nixon v. State, 31 Tex.Crim. Rep.; Musgrove v. State, 11 S.W. Rep., 927; Williams v. State, 6 S.W. Rep., 318.

We insist that this evidence is incompetent, and that it was highly prejudicial to appellant and was calculated to mislead the jury.

The court also erred in permitting the State to prove that on the morning after the alleged theft, after defendant Ell Carter separated, Will Holt and Ell Carter were arrested that evening twenty-three miles west of Abilene on their way to Arizona. The fact of the flight of Ell Carter and Will Holt, after they had separated from appellant, is clearly incompetent evidence. The court explains the bill by saying it was admitted to corroborate Z. Rubottom. If this evidence is admissible to corroborate Z. Rubottom, then an accomplice can always corroborate his evidence by the acts of his associates after the crime has been committed. An accomplice can always manufacture something that occurred afterwards in order to corroborate himself. The jury may have considered this flight of Will Holt and Ell Carter as evidence of their guilt and as evidence of a conspiracy between them and appellant to induce Z. Rubottom to commit the theft charged. The jury may have considered the flight of these two parties in connection with appellant's trip to San Angelo, and it may have had considerable weight with the jury as to whether or not appellant's explanation was true. If their flight was admitted, then any declaration they made would also be admissible against defendant, or in his behalf. It seems to us that this is clearly an error, and that it was such an error as was calculated to injure appellant. Jump v. State, 11 S.W. Rep., 627; Willey v. State, 3 S.W. Rep., 570; Estes v. State, 5 S.W. Rep., 176.

The appellant also requested a charge on possession of stolen property and reasonable explanation of the same in special charge number 1, which the court refused, as shown by bill of exception number 6. The appellant, when arrested by the sheriff, and in reply to his question, told him without hesitation or evasion that he had $100 in gold, and told him where it was and how he came by it; that he got it from Ell Carter, who won it from Z. Rubottom, etc. This explanation, if true, and it was brought out by the State, was entirely consistent with appellant's innocence of the crime charged. See evidence of H.B. Cook, sheriff. The state was bound by the explanation, and we insist that appellant was entitled to the charge. It is true that appellant did wrong in gambling; but that is no sufficient crime to send a boy to the penitentiary. He had always borne a good character in the community in which he lived, as shown thief, who had stolen many times before, and also a confessed burglar. Wheeler v. State, 34 Tex. Crim. 350.

The appellant further insists that material error was committed by the court in permitting Will Holt, a brother of defendant, to testify when on trial the day before in companion case, that he failed to take the witness stand and testify in his own behalf. The bill of exception shows that counsel went up to the court and told him that if this witness was compelled to testify to this fact it would necessitate putting defendant on the witness stand, as it called the attention of the jury to the fact that defendant had a right to testify in his own behalf. It may have been that defendant's counsel should have relied upon the bill and kept defendant off the witness stand, but it seems to us that after the evidence was introduced there was no escape from it. Necessarily the jury would have wondered why defendant did not take the stand and would have considered it against him. This was an ingenious way for the State to call attention of the jury to the fact that appellant had failed to testify. It was just as effective as if counsel for the State had argued it to the jury, and was doubtless offered for this purpose. It in no way weakened, contradicted, or explained the testimony of the witness Will Holt, and was wholly irrelevant to the case.

The court also materially erred in his charge to the jury on the law of principals. This error was called to court's attention in supplemental motion for new trial.

The court in effect told the jury that if they believed Will Holt, Ell Carter, and defendant conspired together to induce Z. Rubottom to commit the theft, etc., then the act and declaration of one would be the act and declaration of the other. Will Holt had been acquitted. The court thereby told the jury that all that Z. Rubottom testified Will Holt said and did was evidence against appellant, although a jury had acquitted Will Holt. It seems that the case of Paul v. State, 12 Texas Criminal Appeals, 346, is in point. It is true that the parties there were indicted for the specific crime of conspiracy, but it appears to us that the principle is the same. Before any declaration or act of Will Holt was admissible, a conspiracy must have been formed. If this conspiracy had been formed, then Will Holt was an accomplice to theft; but the jury declared he was not. If Will Holt's declaration at the time all three were present, west of the college, as testified to by Z. Rubottom, occurred, then Will Holt was necessarily a party to the conspiracy. His acquittal made his declarations, if any, inadmissible against defendant.

After appellant was convicted, and Ell Carter, appellant's codefendant, was placed on trial, Z. Rubottom testified in substance, "that shortly after he stole the $90 he had a conversation with Ell Carter alone, and Ell Carter asked him where he got the $90, and if he had not stolen it, and he told Ell Carter that he had not stolen it, but that he had sold a half interest in the newspaper to his father, and that was where he got the money." This was set up in supplemental motion for new trial, and appellant makes the affidavit, supported by the affidavit of his attorney, who heard the evidence. The State did not contest or deny the truth of the fact that Z. Rubottom had so testified. Appellant fully accounted for why the evidence was not brought out on his trial, as he knew nothing of the conversation, and the witness Z. Rubottom was an exceedingly hostile witness, and was kept in jail where no one could talk to him, etc. The evidence, if rue, shows conclusively that there was no conspiracy to induce Z. Rubottom to steal his father's money. The evidence tends strongly to show that the boys thought the money belonged to Z. Rubottom. The evidence corroborates appellant's testimony as to Z. Rubottom claiming to own an interest in the newspaper. It is further a significant fact in this case that at no time does Z. Rubottom testify that the appellant or his codefendants ever said anything about where or from whom he was to get the money. This evidence also tends strongly to show that the alleged conversations between appellant and Z Rubottom never occurred. Certainly the State is not permitted to say that the evidence is not probably true when it comes from the very witness on whose evidence they rely for a conviction.

The conversation necessarily occurred just before the $350 was taken. Appellant testified in his own behalf, denying firmly any facts tending to show that he induced Z. Rubottom to steal the money. He firmly denied any knowledge of the $40 theft in May, 1897. If this conversation with Ell Carter be true, it shows almost conclusively that all the conversations testified to by Z. Rubottom just before the alleged theft were necessarily untrue.There seems to us no doubt as to the great materiality of this evidence, and if there was anything suspicious about the evidence the State would have shown it on the hearing of the motion for a witness was guarded in jail, and appellant had no opportunity, so far as the record shows, to converse with him, or to in any way induce him to modify his evidence, and certainly if any such opportunity had occurred the State would have shown it on hearing of the motion. Appellant strongly insists that the court materially erred in not granting a new trial, on account of this new evidence.

We realize the fact that a court should be careful in granting new trials on alleged newly discovered evidence, but this is certainly an extraordinary case. The new evidence does not come from appellant's friends or associates, but from his worst enemy, and from one who has the greatest motive to send him to the penitentiary. It comes from one who has bought his liberty from the crimes of theft and burglary by giving testimony in this case. We earnestly contend that the court's failure in this case to grant a new trial was such an error that should reverse this case. Brown v. State. 13 Texas Crim. App., 59; Mann v. State, 44 Tex. 642; Moore v. State, 18 Texas Crim. App., 212; Johnston v. State, 22 S.W. Rep., 595; Zedlitz v. State, 26 S.W. Rep., 725.

After the opinion affirming the judgment was handed down, these same attorneys filed a motion for rehearing based upon the errors discussed above in their brief, but in which motion there are no additional authorities cited. W.W. Walling and Mann Trice, Assistant Attorney-general, for the State. [No briefs found in the record. — Reporter.]