
    LUNSFORD v. STATE.
    (No. 4302.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.)
    1. Names <§=16(2) — Indictment—Sufficiency-Idem Sonans.
    In an indictment for larceny, the name “Mc-Keg” is idem sonans with “McCaig,” which was the true name of the victim of the larceny, so that the indictment was sufficient.
    [Ed. Note. — For other eases, see Names, Cent. Dig. § 13; Dec. Dig. <S=»16(2).]
    2. Larceny <®=^32(1) — Indictment — Sufficiency.
    In an indictment for larceny, if the injured party was generally known by the name alleged, his true name was immaterial.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 81; Dec. Dig. <@=^32 (1); Indictment and Information, Cent. Dig. § 282.]
    
      3. Larceny <&wkey;50 — Evidence—Admissibility.
    In a prosecution for stealing seed cotton, a witness could testify as to letters on the shoulder strap of a sack containing the stolen cotton, and that he tried to find out by inquiry where the cotton came from, arid that he made observation on the ground of the tracks of two persons around the cotton and found where an automobile had stopped and leaked oil on the ground near the place where the cotton was found.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. <&wkey;>50.]
    4. Criminal Law <&wkey;393(3) — Evidence—Admissibility.
    In a prosecution for larceny of cotton, evidence that the county attorney took defendant’s shoes and fitted them in tracks about where the cotton was found is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 873; Dec. Dig. <&wkey;>393(3).]
    5. Criminal Law <&wkey;517(6), 51S(4) — Evidence —Confession—Admissibility.
    A confession or admission of guilt is admissible if the accused was properly warned by the officer taking it, or if it was a personal statement to the county attorney.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1152-1156, 1161, 1162; Dec. Dig. &wkey;517(6), 518(4).]
    6. Criminal Law <&wkey;417(2), 696(3) — Evidence — Admissibility.
    It was error to permit the county attorney to testify, or to refuse to strike his testimony that he heard the testimony on an inquiring investigation of another witness, and to state what such witness then testified, where it subsequently was made to appear that accused was not then present.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §'968; Dec. Dig. &wkey;417(2), 696(3).]
    7. Criminal Law i&wkey;419, 420(10) — Evidence —Hearsay—Admissibility—Other Offenses.
    While evidence of other extraneous crimes, if a part of the res gestae, or tending to connect defendant with the offense for which he is on trial, is admissible, yet testimony that another person identified certain cotton stolen as his is hearsay and not admissible in a prosecution for stealing other cotton.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 980-983; Dec. Dig. &wkey;419, 420 (10).]
    8. Criminal Law <&wkey;829(l) — Instructions— Substance.
    The accused cannot complain of refusal of a requested instruction, when the court gave a similar instruction which omitted only one word, but did not change the effect of that requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. &wkey;829(l).]
    Appeal from Johnson County Court; B. Jay Jackson, Judge.
    Jess Lunsford was convicted of larceny, and he appeals.
    Reversed and remanded.
    W. B. Featherston and W. E. Myres, both of Cleburne, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for stealing some seed cotton.

The evidence was wholly circumstantial and was ample to sustain the conviction. Hence appellant’s charge to peremptorily acquit was correctly refused.

The pleadings alleged that the cotton was stolen from “Dad” McKeg, and that he was the owner, etc. He testified that his initials were “J. D.” and that his name was spelled “McCaig,” but that he was known and called as alleged in the pleadings and that his name was often spelled “McKeg” instead of “McCaig.” The names were idem sonans. 2 Vernon’s C. C. P. p. 203. Again, the universal rule in this state is that, if the injured party was generally known by the name alleged, it is immaterial what the true name was; and, if the injured party is known by one name as well as another, it is immaterial which is his true name; and, in either event, there is no variance. White’s An. C. C. P., § 340; 1 Branch’s An. P. C. p. 238.

That Dud Sanders testified, in describing the locations, what road or route he would travel in going to Ft. Worth, presents no error. This witness could also properly testify as to the letters he found on the shoulder strap of the sack in which the cotton was contained, and he could also testify that he tried to find out by inquiry where the cotton came from, and that he made observations on the ground, which consisted of his telling about the cotton, the tracks of two persons around about it, and that he found where an automobile had stopped and leaked oil, or oil was there found, upon the ground, and such like testimony. He was not permitted to testify what he learned by making inquiry. Perhaps his testimony that he learned later whose sack it was by making inquiry since then might not be admissible, but that alone would not present reversible error.

The county attorney testified that he took a pair of Clifford Morgan’s shoes and a pair of appellant’s out with him where this cotton was found, and that appellant’s shoes were tennis shoes. He further testified about finding tracks of persons there and fitting these shoes in them. This testimony was all properly admissible. He then further testified that appellant told him that his shoes which he had thus taken out were the shoes he had on on the Sunday night in question, which was the night of the theft. What he testified appellant thus told him was objected to by appellant. The bill does not disclose enough for us to determine whether this testimony was admissible or not. The county attorney had further stated that appellant was not in jail nor under arrest at the time he made the statement, but that he was in the county attorney’s office before a court of inquiry at the time. Whether he gave this testimony before the court of inquiry or made the statement personally to the county attorney at the time is not disclosed; nor iá it disclosed whether, if before the court of inquiry, he had been duly warned. We therefore cannot tell whether this testimony was admissible or not. If it was made in appellant’s testimony before the court of inquiry, it would be inadmissible if it was done under such circumstances as is covered by the decision in Simmons v. State, 184 S. W. 226, and cases there cited. If he was properly warned, then it would he admissible. If it was a personal statement to the county attorney, it would be admissible. We state these matters in order that the testimony may properly be admitted or excluded, as the facts may develop on another trial.

The county attorney was further permitted to testify, over appellant’s objections, that he heard the testimony of Clifford Morgan, it seems at the same inquiring investigation, and then proceeded to tell, as shown by Bill No. 5, what Morgan had testified on that occasion. At the time appellant objected it was not made certain whether appellant was present and heard Morgan’s testimony or not, but later, by the testimony of Mr. Peatherston, it was made certain that appellant was not present at that time, and, after this developed, appellant sought to have the testimony excluded from the jury; but the court refused to exclude it. This testimony of Morgan’s, as testified to by the county attorney, under the circumstances, was clearly hearsay. It was injurious to appellant, and presents error, for which the judgment must be reversed.

Perd Hamilton testified, among other things, that he remembered about some cotton being found in his pasture about September 4th or 5th; that he himself found the cotton. He then was permitted to testify, over appellant’s objection, that Lon Parris identified two sacks of the cotton as his. Appellant objected to this testimony in substance on the ground that it was an effort on the part of the state to show another and different theft from that alleged in the pleadings. The evidence showed that other cotton in sacks was found at the same time and place with that alleged to have been stolen from McKeg and was stolen at the same, or about the same, time. This testimony was admissible as against that objection by appellant; or, rather, Parris himself could have so testified. The rule is that when an extraneous crime is a part of the res gestae, or tends to connect defendant with the offense for which he is on trial, proof of same is admissible. 1 Branch’s An. P. C. § 166, p. 98, where a large number of authorities are collated. But that particular testimony by Hamilton that Parris did identify two sacks of the cotton as his was hearsay and inadmissible. 2 Branch’s An. P. C. p. 1343. On another trial, as stated, Parris could testify that he saw and identified two sacks of. the cotton as his, but Hamilton should not be permitted to state that Parris did so. Testimony showing that other cotton was stolen about the same time McKeg’s was, and found at the time and place his was, is admissible if appellant is shown to be illegally connec-ed therewith.

The charge of the court on circumstantial evidence is word for word the same as that requested by appellant, with the single exception that that requested by appellant added the one word “charged” to the end of the court’s charge. We think appellant’s complaint on this score is hypercritical. Either charge, so far as appellant’s objections are concerned, would have been proper. The addition of said word would have made no difference.

Por the errors pointed out, the judgment is reversed, and the cause remanded.

HARPER, J., absent. 
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