
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    June 5, 1912.)
    1. Criminal Law (§ 814*) — Tbiai>-Instruc-tio ns — Principals.
    On evidence, in a prosecution for theft, showing that defendant and another were in the store where the prosecuting witness said she left her purse, that a watch claimed by the prosecuting witness was found under the house where defendant and such other person lived, and that some of the jewelry was found in a closet in the house, and that defendant and such person offered to pay for the property if they were not put in jail, an instruction submitting the law as to who were principals was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]
    2. Criminal Law (§ 814*) — Trial—Instructions — Application to Evidence.
    In a prosecution for theft, where defendant was shown to have been present with another when the purse was stolen, and where a watch, 'claimed as the property of the prosecuting. witness, was found under her house, but defendant testified that if the purse was taken by the other person she knew nothing of it, and did not aid her, an instruction that, even though such other person took the purse,'the mere presence of defendant would not make her guilty, unless she aided or encouraged the commission of the offense, should have been given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1S65, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.*]
    3. Criminal Law (§ 424*) — Evidence—Declarations.
    A declaration by one of two defendants, leading to the finding of part of the property claimed to have been stolen, was not inadmissible, because made while both defendants were under arrest.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dee. Dig. § 424.*]
    4. Criminal Law (§ 427*) — Evidence—Declaration of Codefendant.
    Defendant, jointly indicted with another for theft, but tried separately, was being brought to jail, when the other, in the presence of defendant, said, “I see something bright out there,” on which the officer went to the place and picked up jewelry lost by the prosecuting witness. To this exclamation defendant made no response. Held that, in the absence of any showing that the offense was jointly committed by defendant and such other person, and that they had hidden the jewelry there and would subsequently appropriate it to their joint use, the declaration was not admissible against defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1012-1017; Dec. Dig. § 427.]
    Appeal from District Court, Tyler County; W. B. Powell, Judge.
    Katie Davis was convicted of larceny, and she appeals.
    Reversed and remanded.
    R. A. Shivers and Joe W. Thomas, both of Woodville, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Katie Davis, appellant, and Florence Ford were jointly indicted, charged with the theft of certain property, including a watch and locket, from Mrs. Williams. A severance was demanded, and Katie Davis alone placed on trial.

The evidence would indicate that Mrs. Williams went to the commissary at Rockland to make some purchases, and laid her purse on the counter and went out, leaving it there. While she was in the store, appellant and Florence Ford were also in there, and remained in the store when Mrs. Williams went out. After Mrs. Williams’ departure, they purchased some goods and left together. Upon Mrs. Williams arriving at home, she, missing her purse, informed her husband, and he went to the commissary in search of it, but did not find it. This was the same afternoon it was lost. The next morning he procured a search warrant, and searched the home occupied by Katie Davis and Florence Ford. Nothing was found in the house; but under the house a watch was found that Mrs. Williams says was her watch, and was in the purse when it was taken. The testimony would show that Katie and Florence were in the store together, left together, and went home in each other’s company; they residing in the same house. When the watch was found under the house, they both were arrested, and the officer started with them to jail; and while going along the road, Florence, in the presence and hearing of Katie, said, “I see something bright out there,” and the officer went to the place and picked up the locket, also lost by Mrs. Williams at the time the purse was lost. Other property was found about the place where appellant and Florence Ford resided.

The circumstances relied on to connect appellant with the theft is the fact that she and Florence Ford were in the store where Mrs. Williams says she left her purse; that the watch was found under the house, and some of the jewelry was found in the closet on the same place, and the further fact that, at Mr. Allen’s suggestion, or otherwise, appellant and Florence Ford offered to pay for the property if they were not put in jail, appellant explaining she had a young baby, and for this reason would rather pay for the property than to take the baby to jail with her.

The circumstances in evidence would support a finding of the jury that appellant and Florence Ford were guilty of the theft. Appellant’s contention that the court erred in submitting the law as to who are principals cannot be sustained. The evidence would point to a joint taking, or a taking by one with the knowledge and consent of the other, knowing the unlawful intent, and a joint hiding or concealment of the property.

However, appellant insists that if the court presented the law as to who are principals, and the fact of her being present with Florence Ford, and the watch being found under the house, and the further fact that the locket was found by reason of a suggestion made by Florence Ford to the officer, then appellant says, as she testified that, although she was with Florence at the store, if the purse was taken by Florence she knew nothing of it, and did not aid her, that the court should have instructed the jury that, even though they believed Florence Ford took the purse, the mere presence of defendant would not render her guilty, unless she aided or encouraged her in the commission of the offense. We are inclined to think the court should have presénted the defensive theory affirmatively.

It is also insisted that the court erred in permitting the officer to state what Florence Ford said, and that, in consequence of the remark, he was led to find the locket at the point suggested by her. It is a well-recognized principle of law that after the completion of an offense, the remarks of one offender are not admissible against the other, unless there is something said that would indicate the guilt of the other and call for a response, where silence can be construed as acquiescence. In this case the remark did not call for a response from appellant — in fact, did not indicate guilt until the locket was found — and appellant’s testimony would indicate she did not know it was there. The only theory that would render it admissible would be that the offense was jointly committed by appellant and Florence Ford, and that they, had hid it there to escape detection, when they would subsequently come and get it and appropriate it to their own joint use. This is not manifest by the record. The objection that they were under arrest is not tenable, as it led to the finding of the property ; but on another trial this evidence, while admissible against Florence Ford, should not be admitted against appellant, unless it can be brought within the rule announced in Franks v. State, 26 Tex. Cr. R. 151, 35 S. W. 977—if they were still acting together in the concealment of the property, with a view to a later disposition of it, it would be admissible.

The judgment is reversed, and the cause is remanded.  