
    RIVERA v. STATE.
    (No. 6643.)
    (Court of Criminal Appeals of Texas.
    April 5, 1922.)
    1. Criminal lav/ <@=»361 (3) — Exclusion of evidence of innocent motive for flight held erroneous.
    In a prosecution for theft, the court erred in excluding defendant’s testimony that he fled on the approach of the arresting officers because he heard one of them mention a man by whom his life had been threatened and believed he was about to be attacked by him; it being competent to establish the motive for his flight.
    2. Criminal law <®=»552 (I) — Evidence of flight not conclusive.
    Evidence of .defendant’s flight is not conclusive of guilt, the motive for his flight being for the jury.
    Appeal from Criminal District Court, Cameron County; Walter P. Timón, Judge.
    Guadalupe Rivera was convicted of theft and he appeals.
    Reversed and remanded.
    E. K. Goodrich & Son, of Brownsville, and ⅛. O. Gaines and James A. King, both of Austin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the offense of theft; punishment fixed at confinement in the penitentiary for two years.

A buggy belonging to Concepcion B. De Velis was stolen at nighttime.

■ Appellant resided upon a ranch distant from that upon which the owner dwelt. On the day that it was stolen, the buggy was found at the house in which the appellant and his brother resided.

Patlan, for the state, testified that he was acquainted with the appellant by sight, only, and that about 5 o’clock one morning he met him on the road. Appellant at the time was riding in one buggy with another person and drawing ’ another' behind. Neither of the buggies was identified' by the witness. Neither the -witness nor the appellant stopped, but, in passing, the appellant said, “Goodbye,” and the witness returned the salute. It was very dark at the time.

Appellant testified and introduced evidence supporting the theory of alibi, and also testified that his brother had admitted that he had stolen the buggy. When the officers arrived on the premises, the appellant fled. This was proved against him by the state, and reliance was had upon this and other circumstances to support the conviction. The state depended upon circumstances alone.

Appellant sought to explain his flight by giving testimony to the effect that the lives of both himself and his father-in-law had been threatened by Jose Saldana. His father-in-law was murdered and suspicion pointed to Saldana. When the officers approached, appellant did not know them or their mission, and he heard one of the party utter the name Jose, and believing that he was about to be attacked by Jose Saldana, he fled. In rejecting his explanation, we believe the trial judge fell into error. The evidence of appellant’s flight was not conclusive of his guilt. The motive for his flight was a matter for the jury to determine, and it was competent to establish by proof of other facts a motive consistent with his innocence of the crime against him which he was defending. Underhill on Crim. Evidence, § 119; Iewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832; Arnold v. State, 9 Tex. App. 435.

For the reasons stated, the judgment is reversed, and the cause remanded. 
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