
    CLARK v. STATE.
    (No. 4245.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.)
    Larceny <@=51(1) — Evidence—Possession of Stolen Property by Another.
    In prosecution for theft, held error to admit evidence that articles similar to those stolen, but not clearly identified as the articles stolen, were found in the possession of another person the day after accused’s arrest, with no testimony showing any acting together between this person and accused.
    [Ed. Note. — Eor other cases,' see Larceny, Cent. Dig. §§ 144, 146; Dee. Dig. '<@=51(1).]
    Appeal from Lavaca County Court; P. H. Green, Judge.
    George Clark was convicted of theft of personal property, and appeals.
    Reversed and remanded.
    Marcus Schwartz, of Hallettsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON,'J.

Appellant was convicted of the theft of one horse collar of the value of $2.50 and one pair of breast chains of the value of $1.25 from the owner, Cervenka. Cervenka says that he lost the things set out and other things of the same sort at the same time. It is claimed appellant was found in possession of a collar and chain, and that Peters, living in a different section of the county some miles away, was found in possession of some of the property of Cervenka. There was no connection shown between Peters and appellant. They were not shown to have been together. The sheriff went to Peters’ house, and found a large collar in a' cane patch; he also found a breast chain on Peters’ cultivator, which he was then using. These were similar to those found at the home of the defendant. He says he brought the chain and collar to town, and a few days later Cervenka came to town and identified same as his property. Appellant objected to the introduction of this testimony for various reasons. There was no testimony introduced to connect the defendant with the theft of that collar and breast chain, and the testimony was incompetent and irrelevant, and tended to prejudice the jury against the defendant by showing other petty thefts by other people. These objections were overruled, and the testimony was permitted to go to the jury. The bill of exceptions shows the sheriff stated the next day (meaning the day after he arrested the defendant), he went to the home of Joe Peters, southwest of town, and found this large collar in Peters’ cane patch, and breast chain on the-cultivator. This occurred in the absence of defendant. There is no testimony to show any acting together between the parties, and, outside of the identification by Cervenka, there is nothing to indicate that Cervenka lost this collar and chain. The testimony is weak on the identification, and is made to depend largely upon the fact that the collar had a hole in the strap, which Cervenka says was made by him with a buckle pin. He also says there are a great many collars in the country just like his, with holes, made, perhaps, in the same way. The testimony as to Peters was about a different matter, and property found-in his possession was in no way connected with appellant. The evidence showed appellant lived northwest and Peters lived southwest. These matters, occurring as they did, could not (be used as evidence against defendant, and ought not to have been permitted to go to the jury. There is evidence to show that defendant and Hafer-nik were seen together driving in a wagon on a public road by parties in an automobile. They were seen by the witness Dufner some miles west of Hallettsville, slowly driving in a wagon on a public road going in the direction of Shiner. Dufner says, after going several miles up the road and near Shiner, he and Dornak stopped on the roadside, waiting for his son, Dr. Dufner, and while there defendant and Hafemik passed. The sheriff testified he knew defendant and Cer-venka ; that Cervenka lives about three miles west of town, on the main road leading from Hallettsville to Shiner; the defendant lives between Shiner and Moulton. The next day he went to defendant’s and got a collar and chain, and the next day went to Joe Peters’ southwest of town and found a large collar in Peters’ cane patch, which was claimed by Cervenka. The state does not seek to connect Peters with appellant.

The judgment is reversed, and the cause remanded.  