
    RUSH v. STATE.
    (No. 7468.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1923.)
    1. Criminal law &wkey;>4l9, 420(I) — Testimony as to statements of ownership of property involved held properly excluded as hearsay.
    In a prosecution for theft, where a witness had testified that persons from whom defendant claimed to have received the property while in possession of it had offered to sell it, further testimony that they told him. the property was theirs and that they had gotten defendant to haul it for them was properly excluded as hearsay.
    2. Larceny <&wkey;5l (2) — Exclusion of testimony explanatory of defendant’s relation to property involved held error.
    In a prosecution for theft of property which accused claimed he was hired by two others to haul for one-fourth of the proceeds, it was error to exclude his testimony that before undertaking the ^hauling he had asked where the property was ’acquired and was told that it had been bought and was not,stolen property and that it could be safely hauled.
    3. Larceny <&wkey;70( 1) — Instruction as to necessity of presence at or connection with taking held improperly denied.
    In a prosecution for theft where defendant was shown to have hauled the property to a place where it was to be sold and where the state relied upon circumstantial evidence to connect defendant with the corpus delicti, held, that an instruction that defendant’s presence at the taking, or his connection therewith, was essential to warrant a conviction, was improperly denied.
    —.-KVvr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, ‘Wichita County; H. R. Wilson, Judge.
    John Rush was convicted of theft,.and he appeals.
    Reversed and remanded.
    Davenport & Thornton, of Wichita Falls, for appellant..
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant is charged with the taking of various articles from the possession of F. W. Weaver.

Certain tools were located in a toolhouse on a certain oil lease. Weaver, the owner, two days after missing the articles, found them in Johnson’s junkhouse. Johnson testified that the articles were left with him by appellant and another person for the purpose of sale. Circumstances were introduced tending to connect the appellant with the taking of the property. Appellant testified on the trial that he got the property at a junkyard near a certain warehouse, but not at Weaver’s toolhouse; that one Garner and one Stevens aided in loading it in an automobile, and that he took the articles to Johnson’s shop; that he was to receive one-fourth of the proceeds of the sale, but was to put no price on them. He said he did not know the articles had been stolen; but believed that they belonged to Garner and Stevens. He was doing- the hauling for them,- and his interest was in compensation for the services so rendered.

The witness Roach testified that, in the absence of appellant, Stevens and Garner, while in possession of the property, had offered to sell it to him. He would have testified further that some days later, Stevens and Garner told him that the property was theirs and that they had gotten the appellant to haul it for them. This proffered testimony was properly rejected as hearsay.

Appellant offered to testify that before agreeing to haul the property for Garner and" Stevens, he asked them where they had gotten it; that in reply they stated that they had bought it in the town of Electra and that it was not stolen property, and that it would be absolutely safe for appellant to haul it. The rejection of this testimony is made the subject of complaint.

Appellant, having been found in possession of the stolen property or connected with its possession had the right to introduce testimony explanatory of his relation to the property. . This could be done by his declaration at the time his connection with the property was questioned, or by his testimony given on the trial, or by both methods. Underhill on Crim. Ev. (3d Ed.) § 470; Lewis v. State, 29 Tex. App. 105, 14 S. W. 1008; Johnson v. State, 29 Tex. App. 151, 15 S. W. 647; Epson v. State, 29 Tex. App. 607, 16 S. W. 780. The testimony should have been received.

The state relied on circumstances to, connect the appellant with the corpus de-licti, viz., the taking of the property from the possession of the owner. A request was made by appellant that the jury be told that to warrant a conviction appellant’s presence at the taking, or his connection therewith, was essential. 'It is believed that the evidence called for such a charge, and not having embraced it in the main charge, the court should have given the one requested. See Branch’s Ann. Tex. P. C. p. 1337; also, Cohea v. State, 9 Tex. App. 175, and other cases cited in Branch’s Ann. Tex. P. C. § 2459.

No error is shown by the bill complaining of the transfer of the cause from one court to another. See Littleton v. State, 91 Tex. Cr. it. 205, 239 S. W. 202.

The judgment is reversed, and the cause remanded.  