
    CARROLL v. STATE.
    (No. 4976.)
    (Court of Criminal Appeals of Texas.
    May 8, 1918.)
    1. Ckiminal Law <&wkey;424(l)—Evibence—Tel-egram.
    In prosecution for theft of automobile tires, a telegram from one of the accomplice witnesses to defendant, sent some days after the alleged theft and disposition of the property, was not introducible; defendant not being connected with it in any way, and not shown to have authorized or received it.
    2. Cbiminal Law <&wkey;719(4)—Trial—Argument of County Attorney.
    The county attorney must confine himself in argument within the rule of discussion as to-the facts admitted.
    3. Criminal Law <&wkey;721%(l)—Trial—Argument of County Attorney.
    The failure of the wife of defendant, charged with theft, to testify with reference to a telegram improperly admitted in evidence is not the proper subject of comment in argument by the county attorney.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Ed Carroll was convicted of theft, and he appeals.
    Reversed, and cause remanded.
    J. E. Clarke and J. Webb Stollenwerck, both of Hillsboro, for appellant. E. B. Hendricks, Asst. Átty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of theft of automobile tires and inner tubes, and awarded two years in the penitentiary.

The state’s case was made by the testimony of two accomplices. The defendant relied upon an alibi. It may be very seriously questioned whether or not the accomplices have been corroborated in such manner as the law requires. It is not the purpose, however, of this opinion to pass upon' the sufficiency of the evidence, as the state may present the case in a different attitude before another jury.

A bill of exceptions recites that while the state’s witness Ruby Gibson was testifying she was asked by the state as follows:

“I will ask you if, while he (meaning Ed Gar-roll) was there, or at any time during that day, did he receive a telegram; do you remember about a telegram? A. He did not receive any. Q. Was any telegram received there that day? A. No, sir; not that day. Q. Was there at any time? A. The next day, on Tuesday, there was. Q. Do you know who that telegram was from? A. Prom Arthur Franklin. Q. Do you know whether any one answered that telegram or not? . A. Mrs. Carroll answered it.”

Quite a number of exceptions were reserved. The following bill may be considered in the same connection. It recites that the state was permitted to introduce and read to the jury a telegram identified by the witness Hancock, manager of the Western Union Telegraph Company, at its local office in Hillsboro, Tex., who testified that the same was a copy of a telegram received at the Western Union Telegraph Company’s office from Ft. Worth, Tex., and shows to have been filed at 10 o’clock a. m., August 14th, at the Union Depot, and was received at Hillsboro on the same day at 10:20 a. m., and that it was sent from or signed by A. Franklin and directed to Ed Carroll. Said telegram was in words and figures as follows: Without repeating all of it verbatim, it was dated the 14th of August at Ft. Worth and directed to Ed Carroll at Hillsboro, Tex. The telegram is as follows:

“If you have left let me know, if not let me know where you stay. Ans. Care of T. P. Station. A. Franklin. 10:20 a. m.”

Various objections were urged to the introduction of this telegram. The two bills maj* be considered together. In effect they show that the telegram was sent by Franklin to appellant; that appellant did not receive the telegram. It is also discoverable from the record that the telegram was sent after the supposed alleged theft, which seems to have occurred on the 10th of August. This telegram was not introdueible. Appellant is not connected with it in any way; is not shown to have authorized it, or to have received it. It is a telegram from one of the accomplice witnesses to appellant occurring some days after the alleged theft and disposition of the property. The reason why this telegram was not introdueible seems to be rather obvious. As the matter has been discussed and decided in several cases, and the reasons given for such decision, it is deemed unnecessary to g.o into an extended discussion of the subject. See Chester v. State, 23 Tex. App. 577, 5 S. W. 125; Durham v. State, 45 Tex. Cr. R. 476, 76 S. W. 563; Thompson v. State, 42 Tex. Cr. R. 140, 57 S. W. 805; Hollingsworth v. State, 78 Tex. Cr. R. 489, 182 S. W. 465.

There is also a bill of exceptions reserved to the argument of the assistant county attorney, commenting upon the failure of the wife of appellant to testify before the jury as to the whereabouts of Ed. Carroll at the time of the reception of the telegram above mentioned. The court withdrew this argument from the jury, or rather instructed them to disregard it. This is not discussed because upon another trial the telegram will not be admitted. Of course, the county attorney will confine himself within the rule of discussion as to the facts admitted. Just how far the prosecution may comment upon the failure of the wife to testify about facts while on the witness stand has been the subject of many decisions and fairly well understood, but none of the cases go far enough to hold that the failure of the wife to testify with- reference to illegitimate testimony would be the subject of comment.

The charge on alibi is not correct. Upon another trial a proper charge will be given.

For the reasons indicated the judgment will be reversed, and the cause remanded. 
      
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