
    HUGHES v. STATE.
    (No. 9179.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law <©=>417(15) — 'Third party’s admission of guilt sometimes provable, where state relies on circumstantial evidence alone.
    Where state relies on circumstantial evidence alone to establish guilt, third party’s admission of guilt may be proved under certain conditions.
    2. Criminal law <@=>417(5) — Co'principal’s admission of guilt held inadmissibre as not inconsistent with staters theory of defendant’s complicity.
    Where stolen property was found in possession of defendant and others, all of whom were placed under arrest, admission of guilt by one of such others, who made no such admission when property was found, and was not called as witness for state, was properly excluded as not inconsistent with state’s theory that defendant was also an actor in burglary.
    3. Criminal law <@=>417(10) — Declaration of co-principal exculpating defendant held inadmissible.
    In burglary trial, declaration of one charged as coprincipal, and hence disqualified to testify for defendant, that latter took no part in commission of offense 'held inadmissible, where not part of res gestse.
    On Motion for Rehearing.
    4. Criminal law <@=>1091 (5) — Bills of exception to exclusion of testimony held fatally defective as not stating what witness’ answers would have been.
    Bills of exception to exclusion of testimony as to statements of coprincipal, incriminating himself and exonerating defendant, held fatally defective as not stating what witness’ answers to questions would have been.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    L. ,B. Hughes was convicted of burglary, and he appeals.
    Affirmed.
    W. C. Hensley, of Dallas, for appellant.
    Shelby S. Cox, Crim. Dist. Atty., and Wm. McCraw, Asst. Crim. Dist. Atty., both of Dallas, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of three-years.

The stolen property consisted of a set of carpenter’s tools. According to the state’s witness, after missing his property, he went to Fort Worth in his automobile. While his car was stopped because of tire trouble, another ear passed him in which there were three men: McCoy, Azelhurst, and the appellant. Their conduct aroused the suspicion of the owner of the property. He followed them to Fort Worth, caused their arrest, and found them in possession of his property.

Appellant testified that he was at home, and that the tools in question were brought there by McCoy, who offered to sell them. Failing to sell the tools in Dallas, they took them to Fort Worth, where they were arrested. Appellant disclaimed any knowledge that the tools were stolen. Members of the appellant’s family gave testimony supporting the theory that he was not present when the burglary was committed.

Several bills of exception complain of the exclusion of the declarations of McCoy. ■None of the bills, save one, attempt to set out the excluded testimony. Bill No. 3 recites that the witness, R. B. Hughes, on behalf of the appellant, was asked if George McCoy had told the witness that he (McCoy) had stolen the tools and that the appellant was merely present at the time of the arrest. The bill is meager and fails to state any of the circumstances attending the declaration imputed to McCoy. Appellant, in support of his contention that there was error in excluding the testimony, invokes the rule that in cases where the state relies alone upon circumstantial evidence, the declarations of guilt by another may be introduced in behalf of the accused. In cases in which the state relies upon circumstantial evidence alone to establish the guilt of the accused, under certain conditions, the declarations of a third party, admitting his commission of the 'offense, is a proper matter of proof. See Stone v. State, 98 Tex. Cr. R. 364, 265 S. W. 900, and authorities cited in the motion for rehearing, page 903.

The present record, in our opinion, does not bring the proffered testimony within the rule announced in the cases mentioned. The stolen property was found in the possession of McCoy, Azelhurst, and the appellant. At the time of the finding of the property, no declaration was made by McCoy exculpating the appellant or admitting his guilt of- the burglary. McCoy, Azelhurst, and the appellant seem to have been placed under arrest. McCoy was not called as a witness for the state, and was probably not available to the appellant. Appellant proposed to prove by his father that McCoy had stated at some subsequent time that he had committed the offense. His admission that he committed the offense was not inconsistent with the theory of the state, supported by the evidence, that the appellant was also an actor in the burglary. Both the evidence and the declaration, so far as we conceive them, are consistent with the guilt of the appellant and not inconsistent with his innocence, and therefore it is believed not within the rule to which we have adverted.

That part of the declaration imputed to McOoy to the effect that the appellant took no part in the commission of the offense would be admissible under none of the rules of evidence of which we aré aware. He being charged as a coprincipal in the offense and disqualified from giving testimony for the appellant, to receive his declaration, not admissible under the rule of res gestee, would subvert the statute which disqualified Mc-Ooy as a witness in behalf of the appellant. This phase of the ease was discussed in Wallace v. State, 85 Tex. Cr. R. 208, 211 S. W. 241; Staton v. State, 93 Tex. Cr. R. 356, 248 S. W. 356. Upon the present record, the bill fails to show that the learned trial judge committed error in refusing to receive the proffered testimony.

The evidence is deemed sufficient to support the verdict, and no error has been revealed authorizing a reversal.

The judgment is affirmed.

On Motion for Rehearing.

'HAWKINS, J.

We have carefully examined appellant’s motion and brief in connection therewith. A re-examination of the statement of facts leads us to the conclusion that appellant’s contention that the evidence is insufficient to show a burglarious entry of the house cannot be sustained, and likewise that the want of consent of the alleged owner is sufficiently shown.

We have re-examined bills of exception 1, 2, 3, and 4, in all of which complaint is made at the exclusion of some statements claimed to have been made by one McOoy to the various witnesses named in the bills. Bills 1, 2, and 4 do not in any way undertake to set out what the excluded testimony would have- been. A more critical examination of bill No. 3 shows that it did not merit the consideration it received in our former opinion. The bill simply states that R. B. Hughes was called as a witness by appellant, and was asked if McCoy had not told witness that he (McCoy) had stolen the tools, and that defendant was merely present at the time of the arrest. Nowhere in the bill is it stated what the witness’ answer would have been to such question. All of these bills are fatally defective in failing to advise what the excluded evidence would have been. The court has so frequently called attention to defects in bills of this character that it appears unnecessary to cite authority. However, for collation of many cases reference is made to section 212 of Branch’s Ann. P. C.

Our original opinion, where we stated that McCoy was charged as a eoprincipal with appellant, and thereby disqualified from giving testimony for him, is criticised as not being borne out by the record. It may be we reached a conclusion not authorized by the record, but it does appear therefrom that appellant, McCoy and one Azelhurst were all arrested for this offense; that Azelhurst was released and appellant and McCoy were by the officers brought back to Dallas from Port Wortn where the arrest took place. It does not affirmatively appear from the record that McCoy had been indicted. It may be that, in the 'absence of such showing, our opinion went further'than the record warranted. Under no circumstances, however, are the bills of exception referred to sufficient to show an erroneous ruling on the part of the court.

The other two bills of exception found in the record have been examined in the light of appellant’s motion, and we think no error in the ruling of the court incident to the matters complained of is shown.

The motion for rehearing is overruled. 
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