
    SMITH v. STATE.
    (No. 9504.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.)
    1. Criminal law <§=>508(7) — One convicted of misdemeanor committed jointly with another on trial, after satisfaction of judgment, competent witness for his codefendant.
    One charged with misdemeanor committed jointly with accused, who has been convicted and has satisfied punishment imposed, is competent witness for his codefendant.
    2. Criminal law <§=>508(7) — To make code-fendant charged with misdemeanor competent witness, accused must show that he has satisfied judgment.
    Defendant, charged with misdemeanor, has burden of showing that convicted codefendant has satisfied judgment, in order to render latter competent as witness.
    3. Criminal law <§=>369(5) — In prosecution for misdemeanor theft, statement of defendant as to possession of whisky held improperly admitted.
    In prosecution for misdemeanor theft, evidence that while defendant was under arrest, in legal effect, by prosecuting witness, and waiting for officer, defendant said, “I had better hide my bottle of whisky,” held, improperly admitted.
    4. Larceny <§=>27 — When one not actually taking property may be convicted as principal on charge of theft stated.
    One not actually taking property may not be convicted as principal on charge of misdemeanor theft, unless he was present when property was stolen, or doing his part in joint undertaking, having for its object, in whole or in part, the acquisition of property at time it was taken.
    5. Criminal law <§=>508(7) — In prosecution for misdemeanor, testimony of codefendant, if offered, should be heard to prove that judgment against him has been satisfied.
    Testimony of one convicted on charge of committing offense jointly with defendant that judgment of conviction has been satisfied if offered, should be heard on question of such person’s competency as witness for defendant.
    Appeal from Palo Pinto County Court; E. L. Pitts,, Judge.
    E. C. Smith was convicted of misdemeanor theft, and he appeals.
    Reversed and remanded.
    Carroll McConnell, of Palo Pinto, and Oxford & Johnson, of Stephenville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

Prom conviction in the county court of Palo Pinto county of misdemeanor theft, with punishment fixed at a fine of $10 and 15 days in the county jail, this appeal is taken.

The conviction is for theft of an automobile cushion. The owner of the car from which the cushion was taken testified- that he parked same near a hotel in Gordon, Tex. Prom his window he saw appellant park an automobile alongside that of witness; also saw appellant and one Snider get out of said car, talk for several minutes, after which appellant walked toward the entrance of the hotel, going out of witness’ sight. Snider went to witness’ car and examined the casings and spare on the back of same. Presently appellant returned and talked with Snider a short time and then went away toward the front- of the hotel while- Snider continued to examine the casings and tires on other cars parked near by. Witness awoke another man sleeping in the same room and asked him to look out. About this time Snider went to the car of witness and took the cushion out of same and placed it in appellant’s car and took the cushion in appellant’s car and stood it up against the side of the car, of witness. Shortly after appellant returned from toward the front of the hotel and was standing talking to Snider when witness came down from his room and arrived at the place where the two were. Appellant and Snider both denied having stolen the cushion which was found by witness in appellant’s automobile. On cross-examination this witness said he did not know where appellant went or where he was when Snider took the cushion out of his car and put it in the car of appellant, but appellant told witness that he had gone to attend a call of nature. Witness further said that appellant was not around the automobile when Snider got the cushion. He further said that both appellant and Snider had been drinking. The witness Mayo, who was in the room with witness, whose testimony is above set out substantially, corroborated him. Appellant offered Snider as a witness, but his testimony was objected to upon the ground that he had been separately charged with the commission of the same offense and had entered a plea of guilty. The testimony was rejected.

Appellant’s bill of exceptions No. 1 complains of tbe rejection of the testimony of Snider. The bill complaining of this action of the court was qualified by a statement of the learned trial judge that the evidence showed that Snider was a codefendant separately charged with the commission, of the same offense, and had previously entered a plea of guilty to same, and that there was no evidence showing or tending to show that Snider had satisfied the judgment or penalty assessed against him for the commission of said offense, and no such testimony was offered by any one. Our court seems to have universally held that, where one charged with misdemeanor committed jointly with the defendant on trial has been convicted and has satisfied the punishment imposed, he is a competent witness for his codefendant. Jordan v. State. 29 Tex. App. 595, 16 S. W. 543; Baldwin v. State, 39 Tex. Cr. R. 245, 45 S. W. 714. However, the burden would be upon the accused to show that his codefendant had satisfied the judgment, and, the court certifying in his explanation to appellant’s bill that there was no evidence showing such satisfaction of the judgment of conviction, his testimony was properly rejected. Appellant contends that the bill does not so show.

Appellant’s bill No. 3 was taken to the action of the trial court in permitting the state to prove that while appellant was under arrest, in legal effect, by the prosecuting witness and his friend, and while waiting for an officer, appellant said: “I had better hide my bottle of whisky.” The having in his possession for sale or the transportation of intoxicating liquor by the appellant would be a felony under our laws, and the proof of what appellant said in this regard shed no light upon the proposition of the taking of the automobile cushion, and would not be material to any issue in the case, and might be very hurtful. We think the admission of the testimony was erroneous. We note that the statement of facts shows that at this juncture appellant walked over toward 'the side of the hotel and set a quart bottle containing whisky down by the side of the building.

We are much concerned over the question of the sufficiency of this testimony . to show a theft by appellant. There is no testimony suggesting his presence at the time the automobile cushion was taken by Snider. The proof seems to negative that fact. The conviction could only be upheld upon the proposition that in some way appellant and Snider were principal offenders. Unless Appellant was present when Snider took the cushion, or was doing his part in a joint undertaking having for its object, in "whole or in part, the acquisition of said cushion, at the time Snider took same, he would not be guilty.

Appellant insists that a different construction should be placed upon his bill of exceptions No. 1 and the qualification of the court attached thereto from that which we have placed upon same. It may be that we are in error. If offered, the court should have heaz-d .the testimony of appellant’s co-defendant to provfe that he had satisfied the judgment of conviction rendered against him in this case, and was therefore qualified as a witness in appellant’s behalf. In view of the grave doubt as to the sufficiency of the testimony and of the possible confusion arising from said bill of exceptions, the judgment will be reversed, and the cause remanded. 
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