
    (85 Tex. Cr. R. 291)
    MODELLO v. STATE.
    (No. 5365.)
    (Court of Criminal Appeals of Texas.
    May 14, 1919.)
    1. Criminal Law @=>424(6) — Evidence — Plight oe Codeeendant.
    Evidence that a codefendant forfeited his bond, fled, and was again arrested, was inadmissible on defendant’s trial, though they had been jointly indicted, had fled about the same time, ■ and had been arrested about the same time.
    2. Cbiminal Law @=3424(1) — Evidence—Acts and Declarations oe Coconspiratoe.
    Acts and declarations of a conspirator after consummation of the .crime are admissible only against such conspirator and cannot be used against a coconspirator.
    3. Criminal Law @=3543(1) — Evidence—Testimony Beeoee Examining Court.
    Testimony given before the examining court by witness who at time of trial was in Mexico was admissible upon the trial.
    Appeal from District Court, El Paso County; W. D. Howe, Judge.
    Prank Modello was charged with theft, and from the judgment he appeals.
    Reversed and remanded.
    Jno. P. Weeks and Chas. Owen, both of El Paso, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant and Ernesto Amato were jointly charged with theft from the person of one Prederico Mesa. In the second count they were charged with ordinary theft from the same party.

During the trial evidence was introduced showing the flight of appellant’s co-defendant, Amato. It is shown that Amato was on trial, and before its conclusion he left, his bond was forfeited, and he was later arrested in Harris county. The court seems to have admitted this testimony because of the fact that about the time Amato left El Paso county, pending his trial, appellant also left El Paso county, and was arrested in Harris county at the time, or about the same time, that Amato was arrested. There was evidence also introduced that they did not leave El Paso county together, and that they had not seen each other in Harris county prior to their arrest at that point. Evidently the court admitted the testimony of Amato’s flight on the theory that they were jointly indicted, and fled about the same time, and were subsequently arrested about the same time. This did not justify the admission of the testimony of Amato’s flight. The flight of a codefend-ant after the consummation of a conspiracy, if that existed between them at the time of the supposed commission of the offense charged in the indictment, will not justify the introduction of that flight against his codefendant. This has 'been the subject of quite a number of decisions. See McKinzie v. State, 32 Tex. Cr. R. 578, 579, 25 S. W. 426, 40 Am. St. Rep. 795; Jump v. State, 27 Tex. App. 460, 11 S. W. 461; Landers v. State, 63 S. W. 557; Price v. State, 40 S. W. 596; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; Brown v. United States, 150 U. S. 98, 14 Sup. Ct. 37, 37 L. Ed. 1010; Logan v. United States, 144 U. S. 309, 12 Sup. Ct. 617, 36 L. Ed. 429. The acts and declarations of one coconspirator cannot be used against another coconspirator after the-consummation of the alleged crime. It can only he used against the party making the statement or confession, or doing the act.

Another bill recites that the testimony of Prederico Mesa given before the examining court was reproduced against appellant on his trial. It may be stated that a proper predicate was laid showing that Mesa was in the Republic of Mexico; that he was a Mexican citizen temporarily in the city of El Paso at the time of the alleged theft. This question has been the subject of quite a number of decisions in Texas which have been very fluctuating in their nature. The writer is of the opinion that the proposition of appellant is well taken and should he sustained; but his views have been written out fully in Cline v. State, 36 Tex. Cr. R. 320, 36 S. W. 1099, 37 S. W. 722, 61 Am. St. Rep. 850, and other cases, and nothing here he may state would be of any further service. The rule now obtains, since the overruling of the case of Kemper v. State, 63 Tex. Cr. R. 1, 138 S. W. 1025, by the case of Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533, Ann. Cas. 1913C, 440, that the court was authorized to permit the state to reproduce the testimony. The writer is of the opinion this was error, but does-not care to write any further in regard to-the matter. If what he wrote in those cases-fails to convey his legal views of the question, it would be useless to try to do so.

Por the error in admitting evidence of the’ flight of the coconspirator, the cause will be’ reversed and remanded.  