
    STILES v. STATE.
    (No. 6362.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.)
    1. Criminal law <©=>564(7) — Possession of stolen animals sustains conviction for theft in another county where they had been pastured.
    Evidence that the stolen calves had been pastured in the county in which the prosecution was instituted aijd had disappeared therefrom and had been traced to defendant’s possession in another county is sufficient to sustain a conviction for theft in the county in which the prosecution was begun, though there was no direct evidence of a taking in that county.
    2. Criminal law <©=>417(14) — Declaration of person from whom defendant claimed to have bought showing attempt to manufacture testimony is admissible.
    In a prosecution for theft of a calf which was traced to defendant’s possession, where defendant claimed to have bought the animal from another, who was a witness for the state and denied any connection with the animal, a declaration by the witness that he was about to get in trouble- over a calf and desired his employer to state the animal had been in employer’s pasture for some months was admissible on behalf of defendant as tending to show the witness’ guilt.
    3. Larceny <©=>70(3) — Defendant held entitled to charge that evidence of receiving did not warrant conviction of theft.
    In a prosecution for theft of cattle, where the evidence showed the stolen cattle had been in defendant’s possession, but he denied the taking and claimed to have purchased them from another, he was entitled to a charge requested by him that the offense of receiving stolen goods was a distinct offense from the theft of the goods, and that he could not be convicted of receiving where the indictment charged only the theft.
    4. Criminal law <©=759(4) — Charge possession is not sufficient to warrant conviction is on weight of testimony.
    A charge requested by defendant to the effect that possession alone of recently stolen property was not sufficient to warrant a conviction was upon the weigh't of the testimony and was properly refused.
    
      5. Criminal law <S=»507(I), 780(2)—Witness under indictment for same offense is accomplice in law, and charge should be given.
    A witness for the state who admittedly was under indictment for the same offense as that with which defendant was charged was an accomplice in law, so that an instruction should have been given on the necessity of corroboration of an accomplice’s testimony, though the defendant claimed to have innocently purchased the stolen cattle from the witness and the witness denied any connection therewith.
    6. Criminal law 3=^737(2)—Evidence held to require submission of question of venue to jury.
    In a prosecution for the theft! of cattle, evidence that the cattle were pastured in the county in which the prosecution was begun and were thereafter traced to defendant’s possession in another county, without any direct evidence of the taking of the cattle in the county of the prosecution, required the submission to the jury of the issue of venue.
    Appeal from District Court, Mason County; J. H. McLean, Judge.
    Arthur Stiles was convicted of the theft of cattle, and he appeals.
    R-eversed and remanded.
    Joe A. Adkins and Evans J. Adkins, both of Brady, for appellant.
    R. H. Hamilton, Asst. Atty. Gen.,' for the State.
   HAWKINS, J.

Appellant was convicted for the theft of cattle, and his punishment assessed at two years’ confinement in the penitentiary.

About the 18th of March, 1920, J. J. Ellison, who lived in Mason county, missed from his pasture four head of yearlings. The appellant, Stiles, lived in McCulloch county, about eight miles from Ellison’s pasture. The owner found all of the yearlings in question; the particular one which appellant is charged with having stolen he found in the possession of Oal Willis, in McCulloch county, about a month after it was missed. Willis had bought the yearling from appellant, who in turn claims to have bought it from Alvin Holt. It is not necessary to set out in detail the testimony in the case, as it is not required in considering the questions raised.

Appellant requested the court to charge the jury peremptorily to return a verdict for him, because the evidence failed to show that appellant ever took any cattle from the owner in Mason county. It is true there was no’ direct evidence of the “taking” by Stiles, or any one else, from the owner’s pasture in Mason county. All the direct testimony had reference to the handling of the alleged stolen animal by Stiles in Mc-Culloch county; but there was evidence from which the jury m'ight have reached the conclusion that the animal in question was fraudulently taken from the owner’s possession in Mason county, and that the subsequent handling of it in McCulloch county was only for the purpose of realizing financially on the transaction. No error was committed by the court in declining to give the requested charge.

Appellant admitted having sold the Ellison yearling to Cal Willis. His defense was that he bought it from Alvin Holt, and had nothing to do with the original taking, if it was stolen. Holt- was shown to also be under indictment for the theft of the same animal, and the state used Holt as a witness, having promised him immunity. He denied having sold a yearling to Stiles, or that he ever at any time helped him drive a yearling from Spiller’s pasture to Cal Willis’ place. After having shown that Holt had lived with Alex Arledge a considerable part of the time during the last four or five years, he (1-Iolt) was asked on cross-examination if he had not gone to Mrs. Arledge inquiring as to the whereabouts of her husband, and tell her he wanted to see Alex (Arledge), and wanted him to testify that he had been pasturing a yearling for him (1-Iolt). The witness denied this. Appellant then offered to prove by Mrs. Arledge that during the latter part of March or first of April, 1920, Holt had come to her house inquiring for her husband, and told her “he. was very anxious to see him; that he was about to get into trouble about a yearling that he had sold, and that he wanted Mr. Arledge to help him out by stating that the yearling had been in £x-ledge’s pasture for several months.” Upon objection the court excluded said testimony, on the ground that it was an attempt to impeach a witness on a collateral and immaterial issue. This evidence should have been admitted.

Appellant was claiming he bought the animal from Holt, leaving the inference that Holt was alone the guilty party. Holt, on the other hand, used as a witness by the state, was denying the sale to appellant and any guilty connection with the'animal. Appellant was offering to show that about the time of the alleged sale to him Holt was endeavoring to manufacture testimony presumably with reference to this same animal. If the state had been prosecuting Holt the statement he is claimed to have made to Mrs. Ar-ledge would have been not only admissible against him but would have been most potential as tending to establish his guilt. We can see no sound logic in denying to appellant this testimony as affecting Holt’s status before the jury.

Appellant requested the court to charge the jury, in substance, that theft and receiving stolen property were separate offenses and that a party could not be tried for one and convicted of the other, and that if some one else took the alleged stolen animal appellant could not be convicted of theft, even though he received it knowing it to have been stolen. The facts as developed in the ease made the. requested charge pertinent, and same should have been given. The indictment only charged theft. The jury inight have concluded that Holt, or some other person, stole the animal originally, but that appellant had some subsequent guilty connection with it; hence the necessity for the charge.

Special charge No. 4,’ requested by appellant, to the effect that possession alone of recently stolen property was not sufficient to warrant a conviction, was upon the weight of the testimony, and was properly refused.

Appellant excepted to the court’s charge for failure to charge on accomplice testimony as to the witness Holt, and presented a special charge upon that subject-. Holt’s own admission while on the yntness stand, that he was under indictment for theft of the same animal involved in the instant prosecution, made him an accomplice as a matter of law. When the omission of a charge on that issue was pointed out to the court it should have been supplied. The special charge requested was not-, however, correctly drawn.

The indictment charged the theft to have been committed in Mason county. All the direct evidence connected appellant with the animal in McCulloch county. The state was compelled to rely on circumstantial evidence to make out a case of “taking” in Mason county. The question of venue was raised, and should in some appropriate way have been submitted to the jury. Of course, if the animal in question strayed into Mc-Culloch county, and was stolen there, whoever- may have stolen it would not be guilty of theft in some other county.

For the errors pointed out, the judgment of the trial court must be reversed and the cause remanded. 
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