
    DONAHUE v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.)
    Witnesses (§ 379) — Impeachment—Silence of Witness.
    The prosecuting witness, who testified at the examining trial that defendant confessed his guilty connection with the theft, was present when the officers were trying to get a confession from defendant and heard his positive denial of guilt and remained silent. Held, that defendant could impeach the witness by showing such silence, and its exclusion was reversible error.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    Appeal from Criminal District Court, Harris County; C. W. 'Robinson, Judge.
    Crawford Donahue was convicted of theft, and he appeals.
    Reversed and remanded.
    C. E. Dane, Asst Atty. Gen., for the State.
    
      
      For ottier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of misdemeanor theft, and allotted one year in the county jail.

The alleged owner testified that two stoves were taken from his warehouse on the night of October 29, 1912. The alleged owner, Jones, testified on the examining trial; but he says: “I did not testify in that trial that the defendant made a confession, or had told me that he had taken the stoves. I did not testify to that because I was not asked the question.” He further testified before the jury that on the morning after the stoves were taken, and as soon as he (the witness) had missed them, he called defendant in his office and had a talk with him; appellant being in his employ. He says defendant told him that he and Henry South had taken the stoves, and informed witness where they could be found; that he (witness) at once called an officer and had him arrested; that he and the officer took the defendant to jail, he (Jones) going in company with the officer. Henry South, he says, was also arrested, and Henry South is the man who pointed out the stoves and went with Jones and the officer to where they were, which led to their discovery. In the examining court, he did not testify to this, and he says it was because of the fact he was not asked about it. After taking the defendant to jail that morning, the officer was seeking to get a statement from the defendant in regard to the matter, and tried to get him to tell him about the transaction. Appellant denied the whole matter and said he had not taken the stoves and knew nothing about the stoves. Jones, the alleged owner, was present at the time this conversation occurred, as is shown by his testimony and the testimony of the defendant as well as the officer. This denial on the part of appellant was made in the presence and hearing of Jones. On the trial of the case the defendant proposed to prove that at the time the officer was seeking to get a statement or confession from him, and at the time he made a positive denial of his guilt or partieipancy in the theft of the stoves, Jones heard this and remained silent and said nothing. Appellant sought to prove this by himself, Jones, and the police officer who had him in charge, or rather who had carried him to the jail. The court refused to permit this evidence to go before the jury. We are of opinion that appellant had the legal right to impeach Jones in the manner indicated. Jones was present and heard the defendant deny having any guilty connection with the transaction, and this at a very short time after Jones says appellant had made the confession to him, and on the same morning. This testimony was legitimate, and ought to have gone to the jury. Appellant received 12 months in the county jail; he most vigorously denied having anything to do with the transaction, and proved an alibi by several witnesses.

The judgment is reversed, and the cause is remanded.  