
    MISSOURI v. STATE.
    (No. 11692.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    1. Criminal law <§=>369 (7) — Testimony that after previous burglary of corncrib owner found cobs on defendant’s premises held inadmissible.
    In prosecution for burglary of corncrib, admission of testimony of prosecuting witness that corncrib had been burglarized three times, in preceding months, and that after morning of' the last-mentioned burglary he found a large quantity of corncobs on defendant’s premises of the same peculiar size as those owned by him, held error, within rule ' inhibiting proof of extraneous crimes which do not form a part of the. res gestee or prove intent, identity, or system.
    2. Criminal law <§=>365(1), 369(15), 371(1), 372(1) — Evidence of extraneous offense, not part of res gestae, is inadmissible unless it proves intent, system, or identity.
    Proof that defendant committed a like offense at another time is not legal evidence that he committed the offense for which he was being tried, unless the other offense was part of res gestae or tended to prove intent, system, or identity of defendant.
    3. Criminal law <3=>37l (I) — That several crimes were committed in same way or at same time does not show system rendering-proof of one admissible in prosecution for other.
    Fact that two or more crimes are committed in the same way does not show particular system so as to -.render admissible, in prosecution for one offense, evidence that the other was committed, and proof of independent crime is not admissible by sheer force of fact that it was committed on the same day or night.
    Commissioners’ Decision.
    Appeal from District Court, Ft. Bend County ; M. S. Munson, Judge.
    Jim Missouri was convicted of burglary, and he appeals.
    Reversed and remanded.
    Heidingsfelder, Kahn & Branch, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, burglary; penalty, two years.

Prosecuting witness was awakened on the night the crime was committed, and, as he approached 'his corncrib, someone fled therefrom whom he was no-t able to identify.

Prosecuting witness over objection was permitted to testify that his corncrib had been burglarized three times in the preceding months, and -that the morning after the last-mentioned burglary he found a great quantity of corncobs on the premises of appellant of the same peculiar size of those owned by him. No corn was taken the night of the last burglary. The similarity of the corncobs was relied on to show appellant’s connection with these previous burglaries.

Admitting that proof .of similarity of corncobs would be sufficient to connect appellant with these prior offenses, which may well be doubted, still we do not think this evidence was admissible. This evidence appears to fall clearly within the rule inhibiting proof .of extraneous crimes which were not a part of the res gestae and which did not go to prove intent, identity, or system. Williamson v. State, 13 Tex. App. 518; Branch’s P. C. § 166. Proof that appellant committed a like offense at another time is not legal evidence that he committed the offense for which he was being tried, unless such other offense tended to prove intent, system, or identity, when these are issues. Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9. The fact that two or more crimes were committed in the same way does not show system. Long v. State, 39 Tex. Cr. R. 546, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501. It has been many times held that proof of an independent crime is not admissible by sheer force of the fact that it was committed on the same day or the same night. Woodard v. State (Tex. Cr. App.) 51 S. W. 1122. Nunn v. State, 60 Tex. Cr. R. 86, 131 S. W. 320; Branch’s P. C. p. 99.

If it had been shown in this case that the former burglaries had been committed by appellant and that in the instant case the crime was committed in such manner or under such facts as tended to show that the party who committed the last burglary was identical with the one who committed the first because of certain identifying facts common to both transactions, the above evidence would have been correctly admitted upon the issue of identity. We find nothing, however, in the facts of the first burglary, which tends to identify the man who fled from the burglarized premises on the night in question'as appellant, unless it could be said that proof of the alleged commission of one offense by appellant is legal evidence that he was the man seen committing another. This last proposition is too manifestly unsound to require discussion. Disposition of this point makes it unnecessary to discuss appellant’s other assignments of error.

The judgment is reversed and the cause remanded.

PER CURIAM. 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. 
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