
    MORAN v. STATE.
    (No. 3059.)
    (Court of Criminal Appeals of Texas.
    April 15, 1914.)
    1. Criminal Law (§ 519,) — Evidence—Concessions — Statements as to Stolen Property.
    Under Code Cr. Proc. 1911, art. 810, providing that the confession of a defendant shall not be used if made while he was in jail, unless made in his voluntary statement before an examining court, or made in writing- and signed by him, or unless, in connection therewith, he makes statements of facts, found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, where persons arrested for stealing a horse and buggy told the owner where to find the buggy, and it was found at the place stated, the statement was admissible, though made while in jail and not in writing.
    ![Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1163-1174; Dee. Dig. § 519.]
    2. Criminal Law (§ 418) — Evidence—Statements of Conspirator.
    On a trial for stealing a horse and buggy, where it appeared that accused and another traveled together in the buggy, were together when it was sold, that accused, at the time of the sale, stated that it was not stolen, and that they then went together to the place where they were arrested, while in possession of the stolen horse, and that while in jail they together talked to the owner, the statement of the other in accused’s presence, and acquiesced in by him by silence at least, as to where .the buggy would be found was admissible against accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 968-972; Dec. Dig. § 418.]
    3; Larceny (§ 78) — Instructions—Defense.
    On a trial for stealing a horse and buggy, accused’s defense that he was not a party to the original theft was fairly submitted by an instruction that if N. left accused and went off and himself hired or took the property without the knowledge or consent of the owner, and if accused was not present, or if the jury had a reasonable doubt as to whether this was true, to find accused not guilty.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 182; Dec. Dig. § 78.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge;
    Bart Moran was convicted of theft, and he appeals.
    Affirmed.
    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
    
   HARPER, J.

Appellant was convicted of theft, and his punishment assessed at two years’ confinement in the penitentiary.'

On the night of the 20th of April- J. M. Harkey had his horse and buggy stolen from him. Appellant and one John Nelson were found in possession of the horse in Ardmore, Okl., and were arrested and jailed. Mr. Harkey went to Ardmore, identified his horse, and talked to appellant and Nelson while in jail, and they told him where he would find his buggy; that it had been sold to Mr. Johnson at Denison, a newspaper man. He found the stolen buggy at the place stated by either appellant or Nelson. Mr. Harkey was not certain which one told him, but says they were both present engaged in the conversation, and he then and there was told where he would find his buggy, and they admitted they had taken it. This conversation in the jail was objected to by appellant on the ground that appellant was in jail; that the confession was not in writing- and was not a res gestae statement, and witness was not certain that appellant made the statement testified, as it may have been made by John Nelson, and appellant would not be bound by statements made by Nelson, even if the statement was admissible against Nelson. The stolen buggy having been found in pursuance of the confession or statement, the fact they were in jail and the confession not in writing would not render it inadmissible. Article 810, C. O. P., provides that if, in connection with such confession, he makes a statement of facts that are found to be true, which conduces to establish his guilt, such as the finding of stolen property, the confession is admissible, and in this instance the stolen buggy was found solely by reason of the statement or confession admitted in evidence. And it would be immaterial whether the statement was made by Nelson or appellant; they left Dallas together in the stolen buggy, were together in Denison when the stolen buggy was sold, and appellant stated, at the time the sale was made to Mr. Johnson,-that it was not stolen property; they went from Denison to Ardmore together, and were arrested in charge of the stolen horse; they together talked to Mr. I-Iarkey in jail, and each would be bound by the statements made by éach of them in this conversation in the presence of each other, which .they each acquiesced in,' by silence at least.

The defendant testified to facts tending to show that he was not a party to the original theft, and the court fairly submitted this issue to the jury, instructing them: “You are further instructed that if one John Nelson left this defendant and went off and himself hired or took the property without the knowledge or consent.of the owner, and this defendant was not present with him at the time he took it, then you will find the defendant not guilty, or, if you have a reasonable doubt as to whether this is true, you will give the defendant the benefit of such doubt and find him not guilty.”

This submitted affirmatively the only defensive issue made by appellant’s testimony; and the judgment is affirmed.  