
    STILES v. STATE.
    (No. 8428.)
    (Court of Criminal Appeals of Texas.
    June 18, 1924.
    Rehearing Granted Oct. 29, 1924.)
    1. Criminal law ¡@=>359 — Confession of another to stealing unidentified cow properly excluded.
    Exclusion of testimony of confession of another to theft of a cow was not error, where such cow was not identified as the one defendant was charged with stealing.
    2. Criminal law <S=o4l9, 420(1) — Testimony that third person committed crime charged inadmissible as hearsay.
    Where evidence connects accused with crime charged, testimony that third person confessed that he committed the crime is objectionable as hearsay.
    On Rehearing.
    3. Criminal lav/ <®=>564(l) — In prosecution for theft evidence held not to establish venue.
    Evidence held insufficient to show that theft of a cow occurred in county as charged.
    Appeal from District Court, Mason County; J. H. McLean, Judge.
    Arthur Stiles was convicted of the theft of cattle, and appeals.
    Reversed, and cause remanded.
    E. J. Adkins, of Brady, for appellant.
    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 the theft of cattle; punishment fixed at confinement in the penitentiary for a period of two yea.rs.

Ellison had a pasture of 2,100 acres, situated in Mason county, about 3 miles from the McCullough county line. He had in his pasture a number of cattle, including a certain yearling, which was the subject of the present controversy. A gate from Ellison’s pasture led into a lane going in the direction of the village of Voca, about 5 miles distant, in McCullough county. This gate was often open, and some of the cattle from time to time strayed into the lane. A yearling, which Ellison identified as belonging to him, was found in the pasture of Willis in McCullough county. Willis surrendered the animal to Ellison, stating and testifying that he had purchased it from the appellant. Appellant in turn testified that he had purchased the animal from Alvin Holt. The negotiation took place in the lane mentioned, and, according to the appellant, he and Holt went to the pasture of Spiller in McCullough county, where the appellant purchased the yearling, and put it in Willis’ pasture. Holt assisted in driving the animal part of the way. Willis had previously indicated to the appellant his desire to purchase a yearling. The witness Evans for the state testified that he saw the yearling in the field apparently trying to get out; that it did escape and enter the lane mentioned. Soon thereafter the witness observed the appellant and Alvin Holt driving the animal in the opposite direction. From his testimony, if we understand it, the animal at that time was in Mason county. The witness identified the animal as the one which the appellant had sold to Willis. Witnesses were introduced by the appellant tending to show that the animal mentioned by Evans was not the one in question, but was one that belonged to the witness Clevenger, which was rightfully in the possession of the appellant.

There is much conflict in the testimony. Adams, a witness for the appellant, testified that he was present at a conversation in which Holt was offering to sell to the appellant an animal which he claimed was in Spiller’s pasture. In a bill of exceptions, complaint is made of the refusal of the court to receive from Adams testimony that Holt had subsequently told him that the sale had been made. The bill, as qualified, shows that the evidence was received, and that the complaint is merely of an effort to have the witness repeat it.

Bill of exceptions No. 2 reveals an effort by the appellant to prove by the hearsay declaration of Holt to the effect that he wanted Mr. Arlege to help him out of trouble about a yearling that be bad sold. There was no error in excluding tbe testimony. Tbe purported confession of Holt in no way identified tbe animal in question. Moreover, there being evidence connecting tbe appellant with tbe taking of tbe animal, tbe receipt of tbe purported confession of Holt would have been obnoxious to the rule excluding tbe hearsay testimony. See Bowen v. State, 3 Tex. App. 617; Holt v. State, 9 Tex. App. 571; Horton v. State (Tex. Cr. App.) 24 S. W. 28; Hodge v. State (Tex. Cr. App.) 64 S. W. 242; Greenwood v. State, 84 Tex. Cr. R. 549, 208 S. W. 662.

Tbe sufficiency of tbe evidence is challenged, but we are constrained to regard it as sufficient. Tbe issues raised were submitted to tbe jury in a charge of which no complaint is made. Tbe solution of tbe conflicting theories in favor of tbe state is binding upon this court.

Tbe judgment is affirmed.

On Rehearing.

LATTIMORE, J.

Tbe description of tbe location of tbe various lanes and places mentioned in this record is not as clear as it might have been, but upon more mature eon-, sideration we have concluded that the state has not only failed to show a taking of the alleged stolen animal in Mason county, but that its testimony strongly negatived such conclusion. Ellison, owner of said animal, lived in Mason county about 5 miles southwest from the town of Fredonia; which is in tbe northeast corner of said county. The town of Voca is in McCullough county, 9 or 10 miles northwest from Fredonia. The county line of Mason county ran 3 or 4 miles north from the Ellison home. He had a 2,-100-acre pasture extending north to within a mile and a half or two miles of said county line. From this pasture a lane extended north 7 or 8 miles to'Voca. A gate opened from Ellison’s pasture into this lane, which gate was usually left open. The animal in question ranged in this pasture. Missing it and others, Ellison searched for them, and found this one in the pasture of Cal Willis on the San Saba river, some 7 or 8 miles north from the pasture in which it had ranged. Ellison hauled the animal home in a wagon.

Brady, the county seat of McCullough county, lies northwest from Voca, and on the Voca and Brady road in McCullough county lived J. J. Evans, who testified for the state that he lived about 8 miles from the Mason county line, and north of a road that ran due east from Voca ; also that in March, 1920, he saw a yearling running around his place several days, saw it first in one pasture or field, and then another, and saw it finally get out into the lane, running east and west near his house. Shortly after that witness saw appellant and one Holt driving the yearling east in said lane. Witness said he afterwards saw Ellison with said yearling in a wagon. This is the state’s only proof supporting the proposition that the animal was taken by appellant in Mason county, or that he had any connection with it at all in said county.

The proposition of venue was made an issue in the trial court, and was submitted to the jury in a special charge, but we are constrained to believe that their finding against appellant on this issue is without support in testimony. There was no conflicting evidence upon the question. Ellison’s gate was open, and his yearling was seen by state witness Evans around his place in a field and lanes some eight miles north of the Mason county line and in McCullough county. After this appellant was seen driving it. There is not a circumstance in the record to show that he had anything to do with its being near Evans’ place. His own theory about it was that of a: purchase from Holt. Witnesses testified to a purchase of a yearling by appellant from Holt, and other witnesses testified that about the time Evans claimed to have seen Holt and appellant driving a yearling in the lane near his place, that appellant was employed to drive a yearling along that road or in that lane. Whether these propositions be true or not, this can be thrashed out in a case wherein the venue can properly be laid in McCullough county. If the animal in question had strayed away from its owner into McCullough county, it would seem to be in his care, control, and possession, and a taking by appellant or anyone else in McCullough county could be tried and determined in that county.

Believing the record devoid of testimony of a fraudulent taking of the animal in Mason county, the motion for rehearing is granted, the judgment of affirmance set aside, and the judgment now reversed, and the cause remanded. 
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