
    DAWSON v. STATE.
    (No. 5844.)
    (Court of Criminal Appeals of Texas.
    June 2, 1920.)
    Criminal law @=>424(3) — Statement of cocon-spirator after consummation of transaction . inadmissible.
    Statement of cocohspirator made out of the presence of defendant, after consummation of the transaction and after defendant had been arrested, was not admissible in evidence.
    Appeal from District Court, Eastland County ; E. A. Hill, Judge.
    H. W. Dawson was convicted of theft, and he appeals.
    Reversed and remanded.
    Mays & Mays, of Eastland, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of. the theft of 14 joints of 6%-ineh casing of sufficient value to make it a felony.

A bill of exceptions recites that McLemore Dawson a brother of defendant, was charged with the same offense; that he was not present at defendant’s trial and did not testify; that Ered Cook, an employé of the Prairie Oil & Gas Company, the party to whom said casing belonged, was testifying for the state; and that the state was seeking to prove by Cook a certain conversation which had taken place out of the presence of the defendant between witness and McLemore Dawson, brother of defendant; this conversation occurred some time after defendant had been arrested on the charge set forth in the indictment in this case; that the conversation was out of the presence of defendant and without his knowledge or consent. The bill is full in its statements, and, after the objections had been urged and overruled, the witness stated:

“The defendant was not present when we had this talk. He [McLemore Dawson] told me that he, together with George Davis and Hosey Davis, went out to the Barnes lease on the afternoon of the 26th of September, 1919, and secured two loads of 6%-ineh casing and hauled it to the home of the defendant, "and left it on the wagon till some 8 or 9 o’clock in the evening and toot it over and unloaded it at the Jew’s yard. The defendant and McLemore Dawson were present when they unloaded it. He went out there at the request of his brother and drove his team, and that his brother paid him 85 per day to drive his team and haul this casing. He told me that he and George Davis and Henry Davis, brother-in-law of the defendant, and the defendant hauled at different times five separate trips.”

Objection was again urged, to the introduction of this conversation between McLemore Dawson and the witness Cook. This testimony was not admissible. The conspiracy, if any existed, had been consummated, and appellant had been arrested in the case at hand. Shiflett v. State, 51 Tex. Cr. R. 530, 102 S. W. 1147; Overstreet v. State, 67 Tex. Cr. R. 565, 150 S. W. 630; Couch v. State, 58 Tex. Cr. R. 505, 126 S. W. 866; Bouldin v. State, 222 S. W. 555, decided at the present term of the court.’ This was but the statement of McLemore Dawson to the witness Cook of things and matters connected With this alleged violation of' the Taw and appellant’s connection with it in appellant’s absence and after the consummation of the transaction, and after appellant’s arrest. Under these authorities this evidence was inadmissible.

The judgment will be reversed, and the cause remanded. 
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