
    STORY v. STATE.
    (No. 10597.)
    Court of Criminal Appeals of Texas.
    May 18, 1927.
    State’s Motion for Rehearing Denied June 15, 1927.
    1. Criminal law <9=3395 — Affidavit and warrant to search place located with reference to city and highway, occupied by named persons, describing property concealed thereon, held sufficient to admit articles found.
    Affidavit and warrant to search private residence, barns, outhouses, and premises situated about 11 miles south of Denton, on west side of Fort Worth and Denton highway, and known as “Litsey Place,” in possession of defendant and occupied by named persons, describing property alleged to be concealed on premises, sufficiently described premises, arid authorized admission in evidence of articles found thereon, in prosecution for robbery.
    2. Criminal law &wkey;365(l), 369(15), 371(8), 372(1) — Articles taken in different robbery, proving extraneous offense, not res gestee or showing intent, system, or identity, held inadmissible.
    In prosecution for bank robbery, admission in evidence of articles found on defendant’s premises, claimed to have been taken during different robbery, held, error as proving extraneous offense by proof not showing intent, system, identity, or res gestm.
    3. Criminal law <9=3369(0 — Testimony identifying coins found on defendant’s premises, taken in different robbery, held erroneously admitted as proving extraneous offense.
    In prosecution for bank robbery, admission of testimony by witness, identifying coins found on defendant’s premises as being property stolen from another bank in different robbery, held error, as proving extraneous offense.
    
      4. Witnesses ©=3372(2) — Cross-examination of witness as to whether he testified for defendant’s brother, charged with murder, held inadmissible in robbery prosecution.
    In prosecution for bank robbery, state’s cross-examination of witness as to whether he had worked for defendant’s brother and had been witness for him when he was charged with murder held inadmissible.
    5. Criminal law <&wkey;763, 764(6) — Charge that 'jury could consider evidence of articles found on defendant’s premises taken in other robberies, in determining guilt of crime charged, held erroneous.
    In prosecution for bank robbery, charge that evidence of articles found on defendant’s premises, taken in other robberies, could be considered only to aid jury in determining whether defendant was guilty of charge alleged in particular indictment, held erroneous.
    6. Criminal law &wkey;>419, 420(11) — Testimony by state witness as to what son remarked to him when he claims to have seen defendant going towards place of robbery held erroneously admitted.
    • In prosecution for bank robbery, admission of testimony by state’s witness, who identified defendant as person seen going towards place of robbery on date it was committed, that son remarked to him, “That ain’t defendant; that’s Ku Klux,” held error.
    7. Jury @=>148(2) — Refusal to swear jurors separately as they were accepted, but swearing them after completion of panel, held error (Code Cr. Proo. art. 622).'
    Under Code Cr. Proc. art. 622, requiring court in capital cases to swear each juror individually when selected, it was error to refuse request to administer oath to jurors separately as accepted, and to swear them separately and collectively after panel was completed.
    On Motion for Rehearing.
    8. Searches and seizures <&wkey;3(2) — Statute regulating issuance of warrant to search exclusively private dwelling relates only to liquor laws, and not to seizing stolen property (Pen. Code 1925, art. 691).
    Pen. Code 1925, art. 691, providing that no warrant shall issue to search private dwelling unless part of store or hotel, or unless affidavits of two credible persons show residence is used for liquor purposes, relates only to search warrants pertaining to violation of liquor laws, and does not apply to search warrant for purpose of discovering and seizing alleged stolen property.
    9. Criminal law &wkey;>369(2) — Proof that defendant committed similar crimes held inadmissible, unless material in proving particular crime.
    Testimony proving, by circumstances or direct evidence, that defendant, charged with commission of crime, had on different and separate occasions committed similar crimes, is inadmissible as convincing jury in particular case that defendant is criminal generally, unless proof of extraneous crime is material in itself to prove particular crime, in which event it is admissible, regardless of whether it establishes extraneous offense or not.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Dallas County; C. A. Pippen, Judge.
    Yancey Story was convicted of robbery' with firearms, and he appeals.
    Reversed and remanded.
    Alex Pope and Jed C. Adams, both of Dallas, and McLean, Scott & Sayers, of Fort Worth, for appellant.
    William McOraw, Ddst. Atty., of Dallas, Elbert Hooper, Co. Atty., of Denton, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   RAKER, J.

The appellant was convicted of robbery with firearms, and his punishment assessed at 99 years in the penitentiary.

The record discloses that the appellant was charged by indictment in the district court of Denton county with unlawfully and willfully assaulting A. H. Knox, and putting the said Knox in fear of life and bodily injury by using and exhibiting firearms, and with fraudulently taking from the person and possession of the said Knox $3,037 in money, certain Liberty bonds, United States Treasury savings certificates, etc. The venue being changed, appellant was tried and convicted in the criminal district court No. 2 of Dallas county. It appears from the record that A. II. Knox was cashier of the Farmers’ & Merchants’ State Bank in the town of Krum, Tex.; that about 3:40 p. m. on the date of the alleged offense two masked persons entered said bank with drawn pistols; that one of the robbers held a pistol on the cashier, Knox, the assistant cashier, Rucker, and the bookkeeper, Bar-hold, while the other robber entered the vault and took possession of the money and other valuables mentioned in the indictment; and that both of the robbers then left the bank, entered a waiting automobile, and drove rapidly away. This robbery occurred on June 9, 1925.

On August 24, 1925, Tom R. Hickman, a ranger, made affidavit before Justice of the Peace Boyd and obtained a search warrant to search the private residence, barns, outhouses, and premises situated about 11 miles south of the city of Denton, on the west side of the Fort Worth and Denton public highway, and known as the “Litsey Place,” alleged to have been in the possession of Yan-cey Story and to have been occupied by G. C. Sewell, a negro man whose name was unknown, and a white man by the name of Jack Hawthorne. The affidavit alleged that certain stolen goods and property, describing them, were concealed on said premises. Hickman and other officers took the search warrant on the date of issuance, made a search of the premises, and took in their possession one watchman’s clock, a safety deposit box containing papers, receipts, and coins, an oxygen tank, automobiles, and many other articles, as set out on the return of said writ. Hickman and other officers testified to finding these articles in and about a barn, under rocks, and at various other places on the premises.

It was the contention of the state that the appellant was one of the parties who robbed the Krum bank, and that the various articles found in the search and seized by the officers were stolen goods, some of which had been taken in other bank robberies and burglaries.

The appellant did not testify, but defended upon the ground of an alibi.

The record contains 26 bills of exception, the number of which precludes a separate and lengthy discussion of each bill. In bill No. 1 appellant complains of the action of the court in permitting the state to introduce in evidence the affidavit for search warrant, the warrant issued by the justice of the peace, the return thereon, and the testimony of the ranger Hickman as to what was found and seized under said search warrant. Appellant contends that the affidavit failed to describe the property to be searched with proper accuracy; that there were several farms, private residences, barns, and outhouses in that vicinity under the control of three or four different persons; that said affidavit was void ; that said search warrant was not directed to the sheriff or other peace officer of the proper county, but directed to the sheriff of Denton county or an'y ranger of the state of Texas; that the ranger Hickman was not a peace officer within said county; that said search warrant was issued without any judicial determination showing probable cause; and many other objections. Appellant takes the position that, by reason of the alleged defects in the affidavit and search warrant, the search was unlawful and in violation of the Constitution and laws of this state, and that the court erred in admitting the testimony obtained as a result of said search. We are of the opinion that the affidavit and warrant •sufficiently described the premises in question, and that the court committed no error in overruling this objection. Wilson v. State (Tex. Cr. App.) 290 S. W. 1103.

This bill of exception, as presented, is insufficient to apprise this court as to whether or not the barn where most of the articles mentioned were seized was used in such connection with the private residence of the appellant as to bring it under article 691, P. C., which states in part:

“No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this act.”

However, it is unnecessary to discuss the point, in view of the disposition we have made of the case, but, if the testimony upon another trial should show that this evidence falls within the terms of the above article, then the affidavit for search warrant, to be sufficient, would have to be made and signed by two credible persons. Heitman v. State (Tex. Cr. App.) 290 S. W. 768.

In bills of exception 2 to 7, inclusive, and 25, complaint is made to the action of the court -in permitting the several state’s witnesses to testify concerning, and to the introduction in evidence of certain articles found during the search of appellant’s premises; it being alleged that the affidavit and search warrant were void, and the admission of said evidence was therefore in violation of the Constitution and laws of this state. What we have said relative to bill of exception No. T fully applies to these bills.

In bills 9 and 10 appellant complains of thé action of the court in permitting the stale to prove by the witness Hampton that he lost a night watchman’s clock, similar in all respects to that found in the search of appellant’s premises, during a bank robbery at Sanger, Tex., on the night of March 11, 1925. The appellant objected to this testimony upon the ground that it was proving an extraneous crime other than that for which he was on trial,.and that such evidence could only serve to inflame the minds of the jury against him and impress upon the jury the idea that he had been connected with or had engaged in the bank robbery at Sanger on March 11, 1925. The court qualifies this bill by stating that this case depended upon circumstantial evidence, and that the testimony 'Objected to was admitted for the purpose of identifying the appellant. We think the learned .trial judge fell into error in the admission of this testimony. This court has frequently held that it is error to prove extraneous offenses alleged to have been committed by a defendant, when such proof does not show intent, system, identity, or res gestae. The testimony of the witness Hampton did not fall within any of the exceptions above named and was clearly inadmissible. Weatherred v. State, 100 Tex. Cr. R. 199, 272 S. W. 471; McRae v. State, 101 Tex. Cr. R. 411, 275 S. W. 1067; Roark v. State, 101 Tex. Cr. R. 401, 276 S. W. 242; Berry v. State, 103 Tex. Cr. R. 465, 281 S. W. 1058; Walker v. State, 103 Tex. Cr. R. 555, 281 S. W. 1070.

In bills 11 and 12, complaint is made to the action of the court in permitting the state’s witness O. N. Skaggs, in his testimony, to identify certain coins found in the search of appellant’s premises as being property which he had placed in the Ponder State Bank for safe-keeping, and which had been stolen when said bant was robbed on April 25, 1925. These bills show that the towns of Ponder and Sanger were several miles distant from Krum, although all were located in Den-ton county. Appellant objected to this testimony, for the .reason that it was a direct effort on the part of the state to charge appellant with another and different crime than that for which he was being tried, and that such testimony was highly prejudicial to appellant’s rights. The court also qualifies these bills to the effect that the instant case depended upon circumstantial evidence, and that he admitted this testimony for the purpose of showing identity. The testimony complained of in these bills was clearly inadmissible. What we have said in discussing bills 9 and 10 is applicable to bills 11 and 12 also.

In bills of exception 13 and 14 appellant complains of the argument of the district attorney, and to the action of the district attorney in asking the witness Sullivan relative to his having assaulted a certain girl, which question, upon appellant’s objection, was ruled out by the court. In view of the disposition we have made of this case, and the fact that the questions here presented are not likely to arise upon another trial, we do not deem it necessary to discuss these bills of exception.

Bill No. 15 complains of the action of the court in permitting the state, on cross-examination of Floyd McCullough, who had given testimony favorable to appellant, to ask him if he had not worked for Nathan Story, appellant’s brother, and if he had not been a witness for Nathan Story when the latter was charged with a murder alleged to have been committed on January 29, 1925. Appellant objected to this testimony on the ground that it was an improper way to impeach the witness, and that it was prejudicial to his rights. The court certifies in this bill that Nathan Story was not a witness in the instant case and that said cross-examination apd testimony was not in rebuttal to anything brought out by the appellant. There is nothing in the record to show that the appellant had any connection with said offense. This testimony was inadmissible.

In bill No. 18 complaint is made ,to the following portion of the court’s charge, relative to the admission of testimony involving the alleged bank robberies at Sanger and Ponder:

“You are instructed that, if there is some evidence before you with reference to the bank at Ponder and at Sanger having been robbed some time prior to the alleged robbery of the Krum bank, to wit, on the 9th day of June, 1925,' and property taken from said banks and later discovered upon the premises of the defendant Yancey Story, then I instruct you that, if you consider said evidence for any purpose at all, you can only consider it for the purpose of aiding you, if it does aid you, in determining whether or not the defendant is guilty of the charge alleged against him in this indictment in this case, and for no other purpose.”

The appellant, at the proper time, objected to said portion of the charge, upon the ground that it was on the weight of the evidence, and emphasized the testimony introduced by the state relative to the bank robberies at Ponder and Sanger, and many other objections, including one to the effect that said charge was not .a limitation upon said testimony in any respect. We are of the opinion that the criticism urged to this portion of the charge is meritorious, and that the court erred in charging the jury that .they could consider said testimony in passing upon the guilt of the appellant on the charge for which he was then being tried.

In. bill No. 21, complaint is made to the action of the court in permitting the state’s witness Roy Smith, after testifying that about 3:30 p. m. on the date of the alleged offense he saw appellant and another party about a half-mile from the town of Krum going in the direction of said town in an automobile, to testify that his son Clarence remarked to him, “That ain’t Yancey Story; that’s Ku Klux.” Appellant objected to this testimony upon the ground that it was hearsay and was offered for the purpose of corroborating said witness -in his identification of one of the parties in the car as being the appellant. The admission of this testimony was err'or. It was not proper to show the conversation between the witness and his son, under the facts of this case.

In bill No. 24, complaint is made to the action of the court in refusing to administer the oath to each of the jurors separately as they were accepted by the state and the appellant, after the appellant had requested the court to do so; it appearing that the court, without swearing each juror as accepted, sent them off to a room as they were accepted until the panel was completed, then they were brought into court and sworn separately and again sworn collectively. This was error. The statute requires the court in capital cases, to swear each juror individually when selected. Article 622, O. C. P.; Rippey v. State, 29 Tex. App. 37, 14 S. W. 448.

In bill No. 26, appellant complains of the action of the court in permitting the state to introduce in evidence the coins identified by the witness Skaggs as belonging to him; it being contended that this was permitting the state to prove another and different crime than that for which the appellant was being tried, and that said evidence would have a tendency to' impress the jury with the idea' that appellant was involved in the robbery of the Ponder bank, and that same was prejudicial and harmful. This evidence was inad1-missible. What we have said in discussing bills 9, 10,11, and 12 is applicable to this bill'.

For the errors above mentioned, the judg?ment of the trial court is reversed and remanded.

PER OURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

MORROW, P. J., absent.

On Motion for Rehearing.

LATTIMORE, J.

In the motion for rehearing by the state, complaint is made of the following part of the original opinion:

“This bill of exception, as presented, is insufficient to apprise this court as to whether or not the barn where most of the articles mentioned were seized was used in such connection with the private residence of the appellant as to bring it under article 691, P. C., which states in part: ‘No warrant shall be issued to search a private dwelling occupied as such, unless some part of it is used as a store, shop, hotel or boarding house, or for some purpose other than a private residence, or unless the affidavits of two credible persons show that such residence is a place where intoxicating liquor is sold or manufactured in violation of the terms of this act.’ However, it is unnecessary to discuss the point, in view of the disposition we have made of the case, but, if the testimony upon another trial should show that this evidence falls within the terms of the above article, then the affidavit for search warrant, to be sufficient, would have to be made and signed by two credible persons. Heitman v. State (Tex. Or. App.) 290 S. W. 768.”

We are constrained to agree with the state in its contention that this part of our original opinion was erroneous. The search warrant obtained and executed'in the instant case was for the purpose of discovering and seizing alleged stolen property. We are of opinion that the terms of article 691, 1925 P. 0., relate only to search warrants when the purpose of same is to discover and seize intoxicating liquors, or something pertaining to a violation of the liquor laws.

It is further insisted by the state that we were in error in holding inadmissible the testimony relating to the finding upon appellant’s premises of a clock and a quantity of coins which had been taken from places other than that involved in the robbery charged in the instant case, and at times rather widely separated from that of the instant robbery. We are not able to agree with the state’s contention in this regard. Webb v. State, 8 Tex. App. 115, Hardin v. State, 8 Tex. App. 653, Fielder v. State, 40 Tex. Cr. R. 184, 49 S. W. 376, and Watters v. State (Tex. Cr. App.) 94 S. W. 1038, are cited by the state as upholding the proposition that contemporaneous possession of other stolen property beside that described in the indictment is a circumstance provable by the prosecution for the purpose of strengthening the inculpatory inference invoked from his possession of the alleged stolen property involved in the particular case. It will be found that this principle appears to be a quotation from the syllabus of the opinion in the Webb Case, supra. Full reading of the opinion shows said statement to be only partially true, as resting upon said holding. Testimony was admitted in said case of the contemporaneous possession by the accused of certain alleged stolen horses, as therein stated, “on the ground that the supposed theft in Lamar county and that committed in Ellis county were parts of one transaction.” Later in said opinion it is stated that it developed that the thefts were not parts of one transaction, but two separate transactions, and therefore the testimony of a different transaction than the one charged in the indictment, should have been excluded from the jury. We think each of the cases cited in the state’s motion easily differentiated from the principle here contended for. Except for expressions not well founded in some isolated cases, the rule stated by Judge Willson in Williams v. State, 24 Tex. App. 417, 6 S. W. 318, seems uniformly adhered to. Judge Willson says as follows:

“For the purpose of establishing identity in developing the res gestae, or to prove guilt by circumstances connected with the theft, or to show the intent with which the accused acted with respect to the property for which he is on trial, it is competent for the state to prove the theft of other property at the same time and place of the theft of the property in question. Willson’s Texas Grim. Laws, § 1295. But evidence of distinct thefts committed at other times and places than the theft in question is not relevant, and is inadmissible. Such evidence does not serve legitimately to throw any light upon the particular theft for which the defendant is on trial. Gilbraith v. State, 41 Tex. 567; Ivey v. State, 43 Tex. 425; Kelley v. State, 18 Tex. App. 262; Alexander v. State, 21 Tex. App. 406 [17 S. W. 139, 57 Am. Rep. 617].”

As supporting this rule, see Conley v. State, 21 Tex. App. 495, 1 S. W. 454; Musgrave v. State, 28 Tex. App. 57, 11 S. W. 927; Crass v. State, 30 Tex. App. 482, 17 S. W. 1096; Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300; Nixon v. State, 31 Tex. Cr. R. 209, 20 S. W. 364; Schwen v. State, 37 Tex. Cr. R. 370, 35 S. W. 172.

In the language of many authorities, it would seem unquestionably true that to prove against one on trial for the commission of a crime, either by circumstances or by direct testimony, that he had on different and separate occasions committed crimes similar, would be to convince the jury in the particular case that he is a criminal generally, but, unless the matter pertaining to the extraneous crime be a circumstance material in itself to the making out of the particular case, in which event it would be admissible regardless of whether it established an extraneous offense or not, such testimony should not be admitted.

The state also Insists that the charge was not wrong in which the learned trial judge attempted to limit the purpose for which evidence of extraneous offenses was admitted. The charge is set out in the original opinion, and in same the court told the jury pointedly that they could only consider such evidence of extraneous offenses for the purpose of aiding them, if it does-aid them, in determining whether or not defendant is guilty of the charge alleged against him in the indictment in this case. A charge in almost the same language was condemned in Denton v. State, 42 Tex. Cr. R. 431, 60 S. W. 670.

The state’s motion for hehearing is granted to the extent of holding incorrect that part of the original opinion above quoted, hut, by reason of the other errors rendering necessary a reversal of the case, the motion for rehearing is overruled. 
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