
    WILLIAMS v. STATE.
    (No. 4836.)
    (Court of Criminal Appeals of Texas.
    Feb. 5, 1919.)
    1. Criminal Law <g=»400'(ll), 402(1) — Secondary Evidence — Predicate.
    A slip of paper made from data found upon cards or tags originally attached to automobile tires, which defendant had received in exchange for casings which were the fruits of the burglary, was secondary evidence, and inadmissible without proper predicate.
    
      2. Criminal Law @=402(1) — Secondary Evidence — Predicate.
    Evidence of witness with reference to slip of paper made from data found upon cards which had been originally attached to automobile tires received for casings procured by burglary, held not sufficiently specific to show admissibility, even if loss of cards had been fully accounted for.
    S. Burglary @=36 — Evidence op Possession op Property — Admissibility.
    Evidence that defendant had in his possession two new tires was admissible as a circumstance against him, although identity of such tires with those obtained in exchange for casings which were the fruits of the burglary was not definitely established.
    4. Criminal Law @=1169(1) — Admission op Incompetent Testimony — Reversible Error.
    Admitting in evidence a slip of paper made from data found upon cards originally attached to automobile tires which defendant had received in exchange for casings, the fruits of the burglary, without laying a proper predicate, held error of such importance as to require reversal.
    Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Ezra Williams was convicted of burglary, and appeals.
    Reversed.
    H. F. Weldon, of Wichita Falls, J. W. Chancellor, of Bowie, and W. W. Alcorn, of Den-ton, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for burglary. The theory of the state, supported by the testimony of the accomplice Ross, corroborated by circumstances proven by other witnesses, was that appellant and Ross broke open a private garage situated at Bowie, and stole from an automobile therein the casings that were on it; that they took them to Wichita Falls, and there disposed of them. Ross testified that two of the casings were exchanged with the owners of an automobile supply house in Wichita Falls, which other evidence discloses belonged to the witnesses Waites and Nickles. In the exchange Waites and Nickles, according to their evidence, delivered to the appellant and accomplice two new Fisk automobile tires. There was evidence that subsequently there were found in the possession of the appellant two new Fisk automobile tires, and upon this circumstance the state relied in part to connect him with the offense. The Fisk tires, at the time they were found in appellant’s possession, were still wrapped in the paper put on them at the factory. They each had molded on them the factory numbers, one having the number W-742528, the other having number E-352923. Waites and Nickles were customers of a wholesale supply house owned and managed by the witness Sanders, and were in the habit of buying a large number of tires from Sanders each month. From Sanders’ testimony it appeared that he had sold a number of Fisk tires to Waites and Nickles; that at the time of the transaction he made no record of the sale further than to retain in his possession the paper tags that were placed on the tires at the factory, which paper tags had indorsed on them the same numbers as those molded in the tires; and that he wrote on the tags which he retained the name of the purchaser. He was unable to recollect the numbers or other description of the tires in question, and was unable to produce the tags mentioned, but testified that according to his best recollection he had, when the question arose about the matter, delivered the tags to Waites and Nickles. Waites and Nickles were both used by the state as witnesses, and neither of them gave any testimony touching the tags or the number of the casings in question.

At the time the two tires were gotten from the possession of the appellant the witnesses Adams and Cunningham were present. The state introduced a slip of paper, with certain memoranda on it, which slip of paper is described in the testimony of Adams as follows:

“I have seen that slip before (examines slip of paper handed him by state’s counsel). Different parties wrote that. Mr. Nickles wrote the biggest part of it, particularly the upper part. He wrote the top, ‘34 by 4, plain modern, United States casing, and 32 by 3, plain modern.’ I suppose he meant Fisk tires, and two gray tubes,- 34 by 4; and he wrote this, ‘W-742528 and E-352923.’ As to who wrote the other, will say Mr. Cunningham wrote what you called to him to write — the address, 263 Ohio. And Mr. Cunningham wrote these when he got that couple of new tires at Ezra Williams’ home. They compared exactly.”

In this testimony we are furnished the only information that we have in the record concerning the manner in which the tires found in appellant’s possession were identified as the tires which it was claimed by the accomplice were received by him and appellant from the witnesses Waites and Nickles. The tags were not produced, and, as above stated, no inquiry was made from Waites and Nickles with'ref erence to their loss or their contents.

From the above testimony of Adams we infer that the slip of paper which was introduced in evidence, and described in his testimony, was made from the data found upon the cards or tags, which, according to the theory of the state, had been originally attached to the tires. This testimony was objected to as secondary evidence, introduced without the proper predicate, and we regard this objection as one that should have been sustained; and are further of the opinion that tlie evidence of Adams quoted is not sufficiently specific to show its admissibility, even if the loss of the cards had been fully accounted for. He does not purport to recall from recollection the numbers that are indorsed on the cards, or the other data that appeared thereon; nor does he undertake to say, nor does he state or otherwise prove, that the indorsements u£)on the slip of paper were the same as those that were upon the cards. From the record we find nothing that is legally sufficient to enable the jury to have decided that the numbers on the cards were the same as those which were on the slip of paper introduced in evidence and described by the witness Adams. Wyers v. State, 13 Tex. App. 57; Huff v. State, 23 Tex. App. 294, 4 S. W. 890; Wade v. State, 37 Tex. Or. R. 401, 35 S. W. 663; Johnson v. State, 42 Tex. Or. R. 441, 60 S. W. 667; Jacobs v. State, 42 Tex. Cr. R. 359, 59 S. W. 1111; McConico v. State, 61 Tex. Or. R. 48, 133 & W. 1047.

We do not think it would have been necessary for the state to have identified the tires in the possession of the appellant with those gotten from Waites and Nickles by the numbers, or to have used the cards in' evidence for that purpose, provided they could have produced other evidence, circumstantial or otherwise, to establish the identity. Under the circumstances developed from the evidence the fact that appellant had in his possession two new Fisk tires would, we think, have been admissible as a circumstance against him, although the identity with those obtained from Waites and Nickles in exchange for the stolen tires was not definitely established; but from' such testimony the jury might or ■might not have believed that they were the same tires. The state, however, having undertaken to definitely identify them by the fact that the numbers molded on the tires coincided with the numbers on the tags which had been taken oft the tires, and having introduced the slip of paper and Adams’ testimony in evidence for that purpose, it was doubtless construed by the jury, the court having admitted it, as a cogent fact going to establish the identity of the tires in appellant’s possession with those obtained in exchange for the fruits of the crime; and for this reason we regard it of such importance that its illegal admission in evidence constitutes an error requiring a reversal of the case, which is ordered. 
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