
    DOWLING v. STATE.
    (Court of Criminal Appeals of Texas.
    March 20, 1912.)
    1. Ckimittal Law (§ 422) — Evidence—Declaration oe Coconspirator.
    The evidence showing an acting together by M. and defendant, shortly after a burglary, in attempting to dispose of a harness taken in the burglary, their possession of which was not satisfactorily explained, a declaration of M., then made, before disposition of the' harness, that defendant had a harness he wanted to sell, was admissible, on a prosecution for the burglary, as a declaration of a coconspirator prior to termination of the conspiracy.
    [Ed. Note.' — For other eases, see Criminal Law, Cent. Dig. §§ 984-988; Dec. Dig. § 422.}
    2. Criminal Law (§ 814) — Instructions— Evidence Authorizing — Sufficiency.
    The possession of a harness by defendant and another, half an hour after a burglary in which two persons participated, attempted to be explained only by a statement of defendant that they were selling it for a stranger, and their then attempting to sell it, warrants a charge on the law of principals, on a prosecution for burglary.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, I860,. 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec.. 'Dig. § 814.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    B. F. Dowling was convicted of burglary,, and appeals.
    Affirmed.
    Wiley & Baskett, for appellant. C. E.. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at two years’ confinement in the penitentiary. This is a companion case to that of Myers v. State, 144 S. W. 1134, recently decided by this court. The facts herein are practically the same as in the Myers Case.

A bill of exceptions recites that the state relied on circumstantial evidence — that is, recent unexplained possession of the fruits-of the burglary — and the defendant, for the purpose of showing that his possession was-not exclusive, put one Dallas Reib upon the-witness stand and proved by him that on the night of the burglary John Myers called up-the said Reib over the telephone with reference to selling him some harness, but never-asked said witness as to the conversation; and be it further remembered that there was no testimony offered showing that the defendant was present when the said Myers so talked with the said Dallas Reib; and be it further remembered that upon cross-examination of said witness Reib.the county attorney asked said witness what John Myers said to him in that conversation. Several objections were urged to this, principally that defendant was not present or heard the same, and it was the declaration of third party out of the presence and hearing of the defendant, and for which he could not be bound. These were overruled by the court, and the witness answered that John Myers told him over the telephone that Bud Dowling (defendant) had a set of harness he wanted to sell. The court signs this with the qualification; “The defendant ,had put witness Reib on the stand and asked about this conversation. I held that the state on cross-examination was entitled to all of it. Furthermore, I think this evidence was admissible, because a conspiracy was established between Myers and defendant; but, if not, it was admissible to show the conspiracy, leaving it to the jury to decide when the conspiracy began.”

The evidence in the case justifies the conclusion of the court, as we understand the record, in his qualification to the bill. Dowl-ing and Myers were shown to have been acting together in the disposition of the property. Appellant did not talk to witness Reib, but he did call up Burton over the telephone and offer to sell him the harness in question. Burton went to his stable, where he made an appointment with Dowling, the defendant, to inspect the harness. Dowling and Myers appeared there together, with the harness in a sack; Dowling carrying it. When they poured it out on the floor of the stable for inspection by Burton, the officers appeared on the scene and arrested both Myers and Dow-ling. These officers had been previously notified by Burton of the conversation occurring between himself and Dowling.

Appellant’s theory was he had nothing to do with the theft of the harness, or the breaking into the house for the purpose of stealing the harness, and was not present at the time and place of the burglary of the house and theft of the harness. His account of his whereabouts that night and his possession of the property were unsatisfactory to the jury, and we are of opinion the jury was justified in discarding that testimony. The harness, after being taken, was carried to the saloon of Motley, and from Motley’s saloon it seems the telephone messages passed between Dowling and Burton with reference to the harness, and the harness was carried from this point to Burton’s stable. When charged with the theft, and when arrested, appellant gave no account of his possession. He states the reason he did not was because it would do no good. His .claim was that he and Myers were selling it for a stranger. The stranger did not accompany them, nor was he shown to have been in their company by any evidence, except that of the defendant. He was not with them at the stable, nor is he shown to have accompanied them to the stable where the harness was to be sold.

We are of opinion the court did not err in admitting this testimony. The evidence shows an acting together between the parties. This conversation between Myers and Reib over the telephone occurred before the disposition of the property, and while it was still in their possession. It was not the declaration of either one of the eoeonspirators after the termination of the conspiracy; but it was a declaration of one of them with reference to the harness, pending final disposition of the alleged stolen harness.

It is contended the court erred in charging the law of principals. We are of. opinion this is not sustained by the record or the law. There were tracks of two persons found near the barn. These were not identified as the tracks of Dowling and Myers; but this evidence was introduced to show that two persons were concerned in the burglary. This occurred somewhere about 7:30 o’clock approximately. A few minutes after this they were in possession of the harness at Motley’s saloon. Appellant accounts for his possession by saying he received the harness from another person, who to him was a stranger. We are of opinion, under the facts, the court was correct in charging on the law of principals. The parties were acting together, as far as the evidence goes, in all their relations to and connection with the harness, which they had in their possession a very short time, perhaps less than half an hour, after the harness was taken from the barn. While they were not shown, except by circumstances, to have acted together in burglarizing the house and taking the harness, yet the evidence, though circumstantial, is sufficient to show they did burglarize the house. The immediate possession of the property by Myers and Dowling, and all their subsequent acts in connection with the property, and their seeking to dispose of it, and' being caught in possession of it, was sufficient evidence to justify the court in charge ing the law of principals.

Finding no reversible error in the record,, the judgment is affirmed.  