
    BOWMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 2, 1913.)
    1. Criminal Law (§ 369) — Evidence—Other Offense.
    Proof of other crimes, which is not offered to show intent, identity, or system, or which is not part of the res gestse, is not admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    2. Criminal Law (§ 369) — Evidence—Other Offense. '
    In a prosecution for burglary committed on April 28th, evidence that other burglaries were committed by accused, respectively, on January 7th, March 23d, and April 25th, was not admissible; there being no question of identity or intent in the present prosecution.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ed. Bowman was convicted of burglary, and appeals.
    Reversed and remanded.
    Dwyer & Chambers, of San Antonio, 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 Indexes
    
    
      
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   HARPER, J.

Appellant was prosecuted and convicted of bui-glary, and his punishment assessed at two years’ confinement in the penitentiary.

There are many questions raised in the motion for a new trial, but we do not deem it necessary to discuss each of them. The evidence shows that the store of W. A. Card-well was burglarized on the 28th day of April, 1912; that the door had been prized open with a tool that left an imprint on the wood — there being three impressions — there being a gap ip the instrument that made the impression. The safe in this store was blown open with dynamite, and the money contained therein taken therefrom. The evidence against appellant was wholly circumstantial ; but it may be said that it was sufficient to sustain the verdict, if there was no prejudicial error committed in the trial of the ease.

As the evidence clearly shows there was no question of intent in the case, the person who entered the store did so with the intent to commit and did commit theft is proven beyond question, and appellant raises no question that if he was the person who entered the store he did so with any innocent intent. In Branch’s work on Criminal Law (section 338) the rule is correctly stated as follows: “Defendant should be tried on the merits of each case, and proof of extraneous crimes which does not go to show intent, identity, or system, or which is not part of the res gestee, is not admissible, if it could only show that defendant was a criminal generally. Gilbraith v. State, 41 Tex. 567; Buck v. State, 47 Tex. Cr. R. 319, 83 S. W. 390; Lee v. State, 45 Tex. Cr. R. 51, 73 S. W. 407; McIver v. State, 60 S. W. 51; Buck v. State, 38 S. W. 772; Kelley v. State, 18 Tex. App. 262; Bryan v. State, 49 Tex. Cr. R. 200, 91 S. W. 581; Nixon v. State, 31 Tex. Cr. R. 209, 20 S. W. 364; Williams v. State, 24 Tex. App. 412, 6 S. W. 318; Ivey v. State, 43 Tex. 425; Grant v. State, 42 Tex. Cr. R. 274, 58 S. W. 1026; Wilson v. State, 41 Tex. Cr. R. 118, 51 S. W. 916; Williamson v. State, 13 Tex. App. 518; Conley v. State, 21 Tex. App. 495, 1 S. W. 454; James v. State, 40 Tex. Cr. R. 194, 49 S. W. 401; Unsell v. State, 39 Tex. Cr. R. 330, 45 S. W. 1022; Owens v. State, 39 Tex. Cr. R. 391, 46 S. W. 240; Welhousen v. State, 30 Tex. App. 626, 18 S. W. 300; Owen v. State, 58 Tex. Cr. R. 261, 125 S. W. 405; Johnson v. State, 42 Tex. Cr. R. 440, 60 S. W. 667; Jordan v. State, 96 S. W. 35; Lightfoot v. State, 106 S. W. 345; Hill v. State, 44 Tex. Cr. R. 603, 73 S. W. 9; Marshall v. State, 22 S. W. 878; Schwen v. State, 37 Tex. Cr. R. 370, 35 S. W. 172; Neumann v. State, 58 Tex. Cr. R. 248, 125 S. W. 28; Holland v. State, 55 Tex. Cr. R. 29, 115 S. W. 48; Pace v. State, 58 Tex. Cr. R. 90, 124 S. W. 951; Chumley v. State, 20 Tex. App. 556; Woodard v. State, 51 S. W. 1122; Brown v. State, 54 Tex. Cr. R. 129, 112 S. W. 80; Latham v. State, 39 Tex. Cr. R. 472, 473, 46 S. W. 638; Riggins v. State, 42 Tex. Cr. R. 475, 60 S. W. 877; Dimry v. State, 41 Tex. Cr. R. 273, 53 S. W. 853; Haney v. State, 57 Tex. Cr. R. 158, 122 S. W. 34; Pridemore v. State, 59 Tex. Cr. R. 563, 129 S. W. 1113, 29 L. R. A. (N. S.) 858; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096; Cesure v. State, 1 Tex. App. 22. Proof of other offenses is not admissible to show system, intent, or identity, unless some of these matters are in issue. Denton v. State, 42 Tex. Cr. R. 429, 60 S. W. 670; Parker v. State, 75 S. W. 30; Glenn v. State, 76 S. W. 759; Bink v. State [48 Tex. Cr. R. 598], 89 S. W. 1076; Davenport v. State, 49 Tex. Cr. R. 11, 89 S. W. 1077; Barnett v. State, 50 Tex. Cr. R. 538, 99 S. W. 556; Herndon v. State, 50 Tex. Cr. R. 555, 99 S. W. 558; White v. State, 11 Tex. App. 479.”

In this case it is shown that the court admitted evidence that the store of H. Xaechel was burglarized on the 7th day of January (three months prior to the burglary in this case), that the store of L. T. Mumme was burglarized on March 23d, that the store of J. F. Homen was burglarized on April 25th, and evidence was introduced tending to show that appellant was guilty of these four separate and distinct offenses. It is evident, from the date of each of these offenses, that one could not be res gestse of the other. There was no question of identity in the case, and no issue of lack of guilty intent, if appellant entered the house. The other three burglaries would not add any additional strength to the force of the testimony showing his guilt of the offense for which he was on trial. While Mumme’s and Homen’s houses were apparently burglarized in the same way as Cardwell’s house, yet testimony would not be admissible to show that he was guilty of three burglaries, when he was on trial for only one, and when the evidence would serve no useful purpose in showing whether or not he was guilty of the offense for which he was then on trial; and it was error to admit evidence of these offenses, and appellant’s probable connection therewith. Again, if the testimony had been properly admitted, in his charge the court did not properly instruct the jury for what purposes this testimony would have been admissible, nor limit tbeir. consideration of it to tbe sole purpose for which it could have been admitted.

Because of the error of the court in admitting testimony as to the burglary of these other stores, this judgment is reversed, and the cause is remanded.  