
    ALARCON v. STATE.
    (No. 7141.)
    (Court of Criminal Appeals of Texas.
    June 23, 1922.)
    I.Criminal law <&wkey;200(3) — Former prosecution for theft and receiving stolen goods held no defense to prosecution for burglary.
    Where defendant was prosecuted for burglary, his plea of jeopardy based on a former prosecution for theft and receiving stolen goods, resulting in a conviction of the latter offense, was invalid, as theft, receiving stolen goods, and burglary are separate and distinct offenses, even though they all grew out of the same criminal enterprise.
    2. Criminal law <&wkey;4I5(7) — Declaration as to alleged stolen goods made in the absence of defendant inadmissible.
    Where in a prosecution for burglary the identity or ownership of the alleged stolen property is in dispute, the admission of declarations made in the absence of defendant showing de-clarant’s opinion as to the identity or ownership of the property is inadmissible.
    3. Criminal law <&wkey;415(7) — In prosecution for robbery, owner’s identification of property made in defendant’s absence inadmissible.
    In a prosecution for burglary, where alleged owner of property is not produced as a witness, proof that, in the absence of defendant, alleged owner identified and claimed the property, is not admissible when it is not a part of the res gestee.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Guadalupe Alarcon was convicted of burglary, and be appeals.
    Reversed.
    N. D. Meyer and A. J. Harper, both of El Paso, for appellant.
    • R. G. Storey, Asst. A tty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of El Paso county of burglary, and bis punishment fixed at two years in the penitentiary.

Appellant sought to interpose a plea of jeopardy. Erom the record it appears that prior to the instant trial he had been placed upon trial on an indictment containing two counts, in one of which he was charged with theft, and in the other with receiving and concealing stolen property. He was convicted under the latter count. Upon the proposition that the transaction and offense of which he was convicted was identical with the transaction and offense involved in the instant prosecution, the plea of jeopardy was based. Authorities need not now be cited supporting' the proposition that theft and receiving and concealing stolen property are separate and distinct offenses from burglary, even though said theft and the transaction involving the receiving and concealing of stolen property grew out of the same criminal' enterprise relied upon to establish guilt of burglary. There was no error on the paift of the trial court m sustaining exceptions to said plea of jeopardy and in striking same from the record.

By various bills of exception complaint is made of the 'reception by the trial court of evidence to the effect that property taken from the alleged burglarized house was identified by its owners at times and-places not in the presence of the accused. This testimony was relied upon by the state as material in establishing the guilt of the appellant. The owners of the property who so identified same were not used as witnesses upon the instant trial. In his Annotated P. O. § 2482, p. 1343, Mr. Branch cites many authorities in support of the proposition that, if the identity or ownership of the alleged stolen property is in dispute, it is error to admit as original evidence proof of the acts, omissions, or declarations of persons done or said in the absence .of the defendant showing their opinion or conclusion as to the identity or ownership of such property, and also in support of the further proposition that, when the person in whom ownership of the property alleged to have been stolen is not produced as a witness, proof that such person identified and claimed the property is not admissible when it is not a part of the res gestse and when such identification was made in the absence of the defendant. Believing said propositions sound and supported by the authorities, and that the trial court erred in overruling appellant’s objection to such evidence and in allowing same, a reversal of this case is made necessary; and it is so ordered. 
      <&wkey;For other oases see same topic and KEY-NUMBER. iu all Key-Numbered Digests and Indexes
     