
    FORRESTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1913.)
    1. Receiving Stolen Goods (§ 3*) — Elements op Oppense — Knowledge. _
    _ To constitute the crime of receiving stolen property knowing it to have been stolen, actual knowledge of the theft is necessary; and it i® not sufficient merely that there be knowledge of facts sufficient to satisfy a man of ordinary intelligence and caution that the property was stolen.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. § 5; Dec. Dig. § 3.* For other definitions, see Words and Phrases, vol. 7, p. 5997.]
    2. Criminal Law (§ 673*) — Evidence op Other Oppenses — Admissibility.
    In a prosecution for receiving a stolen drees, evidence of the theft óf a diamond ring subsequent to the theft of the dress, by the same parties who stole the dress, was improperly admitted, where the court in no way limited its application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.*]
    
      3. Criminal Law (§ 417) — Admissibility of Evidence — Testimony of Accomplice of Thief.
    In a trial for receiving stolen goods, testimony of an accomplice of the thief, but not of the defendant, that the thief told her in defendant’s absence that the stolen goods were sent to defendant, was improperly admitted.
    XEd. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 950-967; Dec. Dig. § 417.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    W. M. Forrester was convicted of receiving stolen property, and he appeals.
    Reversed and remanded.
    Williams & Williams, of Waco, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexés
    
   DAVIDSON, P. J.

Appellant was convicted of receiving stolen property knowing it to have been stolen at the time he received it. The evidence discloses that two women, Pearl Forrester and Monta McGowan, were in the city of Waco and went to the store of Sanger Bros. While-McGowan was trying on a lot of different dresses, she testified, Pearl Forrester slipped a dress under her clothing rin some way and disappeared with it from the store. Shortly afterwards, McGowan says, she went to where Pearl For-rester was, and received instructions from her to go to the express office and forward a box that she had left there to Albert Taylor at Ft. Worth; that she obeyed instructions. The theory of the state is that the dress taken by Pearl Forrester was in the box, and was expressed to Taylor in Ft. Worth. Taylor was in Dallas. He was phoned, McGowan says, by Pearl Forrester to go to Ft. Worth and get the box from the express office. Appellant went to Ft. Worth, in accordance with the request, and signed for the box the name of Albert Taylor and received it. Not a great while afterwards he was arrested and held in custody. The state’s theory is that the box contained the stolen dress, and that appellant received it knowing that it was stolen. It is shown that appellant did not open the box when he received it, and did not know the contents.

1. In this state of the case, after charging the jury that if he knowingly received the property, etc., he would be guilty, submitting the issues for the defendant, the court thus charged the jury: “If you believe from the evidence defendant received the property alleged to have been stolen, did so at the request of Pearl Forrester and Monta McGowan, or either of them, and that he did not know that the said dresses were stolen, or did not receive said goods under circumstances sufficient to satisfy a man of ordinary intelligence and caution that said dresses were stolen, you will acquit him,” etc. Exception was reserved to this charge, and we think the exception was well taken. Appellant’s criminality in this case would not depend upon whether he exercised ordinary diligence and caution to ascertain whether the dresses were stolen or not. The statute requires that he must know the goods to have been stolen when he received them. Knowledge on his part is essential, and not only so, but the fraudulent intent must exist as well at the time he received the goods. The mere reception of stolen property is not criminal. As before stated, there must be knowledge on his part that the goods were stolen; and he must receive them with the fraudulent intent to convert them to his own use and deprive the owner of the goods or their value. This question has been decided so frequently that it is hardly necessary to cite authorities, but the statute requires that the defendant must receive the goods knowing them to be stolen; and on the question of caution, etc., see Bray v. State, 41 Tex. 204; Neely v. State, 8 Tex. App. 64; Pressler v. State, 13 Tex. App. 95; Boyd v. State, 18 Tex. App. 344; Price v. State, 40 Tex. Cr. R. 432, 50 S. W. 700; Thomas v. State, 54 Tex. Cr. R. 379, 112 S. W. 1049; Charles v. State, 36 Fla. 691, 18 South. 369.

2. Another matter is presented for revision, to wit, the introduction of evidence showing that two women committed the theft of a diamond ring subsequent to the theft of the dress. It is not shown to have been in any way connected with the dress matter, but independent of that matter and in the absence of the defendant. We are of opinion that as this matter is presented in the record the evidence should have been excluded. This same matter came up and was discussed in Bismark v. State, 45 Tex. Cr. R. 54, 73 S. W. 965. See, also, note 62 L. R. A. 317; also 98 Am. St. Rep. 174. Sometimes it becomes admissible to show extraneous crimes to connect the defendant, develop the res gestee, and show system and intent as it relates to the crime charged and upon which the accused is being tried. In this particular case if it should become necessary, upon another trial, to develop this evidence against the principals, the two women, then the court’s charge should limit it to the purpose for which it was introduced. The ring alleged to have been stolen was taken subsequent to the time the dress was said to have been stolen. That was an independent transaction. The ring was not shipped in the box with the dress, and was in no way connected, so far as appellant was concerned, with this transaction. If the two women 'had been upon trial for the theft of the dress, it would have been necessary for the court to have limited this evidence in his charge to the jury to the purpose for which it was introduced. This statement is made upon the theory that the state brought it within one of the exceptions to the general rule, which would exclude this character of testimony. The court failed to give any limitation on this evidence, either as against the principals, the two women, or the defendant. This was error.

3. There is another matter of which complaint is made. The court permitted the accomplice, Monta McGowan, who turned state’s evidence, to testify, in substance, that Pearl Forrester told her (McGowan), in the absence of appellant and after the goods had been shipped or expressed, that the dress stolen from Sanger Bros, was in the box expressed to Ft. Worth. Various objections were urged to this testimony. Under the authority of Richardson v. State (Civ. App.) 75 S. W. 505, and Cooper v. State, 29 Tex. App. 8, 13 S. W. 1011, 25 Am. St. Rep. 712, we are of opinion this testimony was inadmissible. Appellant was not present; the theft had been completed, and Pearl Forrester was not on trial. These were acts and declarations by the co-conspirators after the theft, when neither one bf them was on trial; but it was sought to use this against appellant, who was not in any way connected with the theft, and, if guilty at all, was guilty on account of receiving the box at Ft. Worth. If Pearl Forrester had been upon trial for the theft of the goods, any declaration that she might make about the matter, after the commission of the offense, would be evidence against her, but not against the defendant for receiving stolen property; but, even if the matter was admissible against Pearl Forrester in making out the case of theft against her as principal, the charge should certainly have limited the evidence, so far as defendant was concerned, to that purpose. The accomplice, McGowan, could not corroborate herself by testifying to a statement or confession of Pearl Forrester; and if the evidence was admissible at all it could be only admissible against Pearl Forrester, and should have been so limited by the court in its charge.

For the errors indicated, the judgment is reversed, and the cause is remanded.  