
    STAPLETON v. STATE.
    (No. 11015.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    1. Criminal law <&wkey;l092(11) — ■'Trial judge is unauthorized to qualify bill of exceptions over objections of party presenting it (Code Cr. Proc. 1925, art. 667; Rev. St. 1925, art. 2237, subds. 7-9).
    Under Code Cr. Proc. 1925, art. 667, and Rev. St. 1925, art. 2237, subds. 7-9, the trial judge is unauthorized to qualify a bill of exceptions over objection of the party presenting it.
    2. Criminal law <&wkey;!092(I I) — If objection is urged to proposed1 expianation, trial judge shouid refuse bill of exception and himself prepare and file substituted bill (Code Cr. Proc. 1925, art. 667; Rev. St. 1925, art. 2237, subds. 7-9).
    Under Code Or. Proc. 1925, art. 667, and. Rev. St. 1925, art. 2237, subds. 7-9', if objection is urged to the proposed explanation of a bill of exceptions, the trial judge should refuse the bill and return it to presenting party and should himself prepare and file bill in lieu thereof.
    3. Criminal law <&wkey;‘!092(l I) — Bill of exceptions filed with qualification or explanation over objection must be considered independently of qualifications and exceptions (Code Cr, Proc. 1925, art. 667; Rev. St. 1925, art. 2237, subds. 7-9).
    If objection was urged to proposed explanation of bill of exceptions and trial court filed bill without returning it to party presenting it as provided by Code Cr. Proc. 1925, art. 667, and Rev. St. 1925, art. 2237, subds. 7-9, bill must be considered independently of qualifications.
    4. Criminal law <&wkey;>37l(2) — Admitting proof that check given for automobile was forgery over objection that it showed another crime held not error.
    In prosecution for theft by conversion of automobile admitting proof that cheek given by defendant was forgery over objection that it showed another ■ crime held not error, where giving of check was incident to defendant’s acquiring the car.
    5. Criminal law <&wkey;4l3(2) — Refusal ef evidence of defendant’s statements that he was driving a borrowed car, which he was going to return, heidi reversible error.
    Where state’s case in prosecution for theft by conversion of automobile depended on establishing a fraudulent conversion after defendant came into lawful possession of the car, refusal to admit testimony that after defendant borrowed the car witnesses saw him driving it, and he stated to them he was driving a borrowed car and was going to return it to the owner as soon as he located his debtor, over objection that it was self-serving, held reversible error.
    6. Criminal law <&wkey;»7l9(4) — District attorney’s argument, predicated on evidence which was withdrawn and jury instructed to disregard, held error.
    In prosecution for theft by conversion of an automobile, where evidence of state’s witness, that he was told by defendant’s uncle that defendant had said to a third person that, when he left the third person’s presence, he was leaving the country, was withdrawn and jury instructed to disregard it, argument of the district attorney that if defendant intended to return the automobile he would not have said he was leaving the country, which trial court did not instruct jury to disregard, held error.
    Appeal from District Court, Eastland County ; Geo. L. Davenport, Judge.
    W. Z. Stapleton was convicted of theft by conversion of a Ford automobile, and.he appeals.
    Reversed and remanded. '*
    Chastain & Judkins, of Eastland, for appellant.
    
      Sam D. Stinson, State’s Atty., and Robt. M. Ryles, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Appellant wás convicted of theft by conversion of a Ford automobile, bis punishment being assessed at 2 years in the penitentiary.

Appellant was negotiating with a motor company at Rising Star for the purchase of a used Chevrolet automobile. He informed the salesman for the company that a party in the oil field near there owed appellant some money, which, if he could collect, would enable him to buy the car. The salesman went with appellant over the oil field, but failed to find the man for whom appellant was apparently seeking. When they returned to Rising Star, appellant delivered to the salesman a cheek for $15 payable to the motor company and purporting to be signed by one H. M. Wingfield, appellant requesting the salesman to hold the car until appellant could find his “boss” and collect his money. What has just been related occurred on Thursday. On Friday morning appellant again came to the motor company’s place of business and notified the salesman that he had located his “boss” at a certain pumping station, and if he could get the car he could go out to this place and collect his money. We understand from the statement of facts that appellant had referred to getting possession of the Chevrolet car. The salesman, however, did not let him have that car, but did loan him a Ford car to bfe used for the purpose indicated by appellant. The place designated by him where he represented he would find his “boss” was about 8 miles from Rising Star. The salesman admonished appellant when he drove the Ford away to hurry back, otherwise they might miss a sale of that car. Appellant did not return the car, and the owners instituted search for it. They found, the car and appellant on Sunday at the house of a kinsman of appellant some 40 miles from Rising Star and in an opposite direction from the place indicated by appellant as the one he wanted to visit when he acquired possession of the car.

Several bills of exception were qualified by the trial judge over objection. We again call attention of trial judges and prosecuting officers to the result when a bill in such condition is presented to this court for review. We have repeatedly pointed out that the judge has no authority to qualify a bill over objection of a party presenting it to him. See article 667, C. C. P., and subdivisions 7, 8, and 9 of article 2237, R. C. S.; Barton v. State (Tex. Cr. App.) 294 S. W. 1112; Dowd v. State, 104 Tex. Cr. R. 480, 284 S. W. 592; Dailey v. State, 106 Tex. Cr. R. 99, 291 S. W. 242; Ariola v. State, 105 Tex. Cr. R. 563, 289 S. W. 385; Melton v. State, 106 Tex. Cr. R. 240, 291 S. W. 904. If an objection is urged to the proposed explanation, the judge should refuse the bill and return it to the party presenting it, and then should himself prepare and file a bill in lieu of the one refused. When this course — which is plainly provided by the statute as the one to be pursued — is not followed and the bill is filed with a qualification or explanation appended over objection properly shown, the bill must be considered independently of such qualification or explanation. Such must be our treatment of the bills in the present case.

It is thought the court committed no error in admitting proof that the check for $15 given to the motor company was a forgery over the objection that it showed the commission of another crime. The giving of the check occurred during the negotiations for the ear which appellant was seeking to purchase, and was an incident leading up to the acquirement by appellant of the car he is charged with having converted. If the state could show that the cheek was forged and appellant knew that fact, it would tend to shed light upon appellant’s intent with reference to the car of which he acquired possession. Craig v. State (Tex. Cr. App.) 23 S. W. 1108; Stovall v. State (Tex. Cr. App.) 97 S. W. 92; Bedford v. State, 75 Tex. Cr. R. 309, 170 S. W. 727.

Appellant offered two witnesses, each of whom would have testified, in substance, that on Saturday after appellant borrowed the car on Friday they saw appellant driving it, and he then stated to the witnesses that he was driving a borrowed car and was going to return it to the owners at Rising Star as soon as he located a certain party who owed him some money. Upon the state’s objection that the testimony was self-serving, the court excluded it. In this ruling we think the learned trial judge fell into error. The state’s ease depended on establishing a fraudulent conversion of the car after appellant came into its lawful possession. The state was insisting that appellant’s failure to return the car promptly, and his conduct incident to borrowing it and his subsequent use of it was inconsistent with an acknowledgment of the owner’s title and constituted a fraudulent conversion. The statements of appellant, which were excluded, were made during the time the state wás claiming the acts of appellant showed an intent to convert the car to his own use. If appellant had been permitted to place before the jury through these witnesses what he said about the car during this time, it might have aided the jury in determining appellant's intent with reference to it. The following authorities appear to support the view that the evidence should have been admitted: Rumbo v. State, 28 Tex. Cr. App. 30, 11 S. W. 680; Williams v. State, 4 Tex. Cr. App. 5; Taylor v. State, 50 Tex. Cr. R. 377, 97 S. W. 473; Wilburn v. State, 99 Tex. Cr. R. 656, 271 S. W. 606; Bush v. State, 95 Tex. Cr. R. 564, 255 S. W. 403.

A witness for the state testified that he was told by an uncle of appellant in the latter’s absence that appellant had said to one John McGee that, when appellant left said McGee’s place, he was leaving the country. It would be difficult to imagine any more damaging hearsay evidence under the issue to be determined. The learned trial judge realized this, and at appellant’s request promptly instructed the jury not to consider the testimony for any purpose. Notwithstanding such evidence had been withdrawn from the jury, the district attorney argued that if appellant intended to return the car to the owners he would not have told McGee he was .leaving the country. Appellant urged objection to the argument and requested the court to instruct the jury to disregard it, which the court declined to do. No evidence is found in the record upon which such argument could be legitimately based. Although John McGee was a witness, he gave no evidence that appellant made any such statement as claimed. The argument was upon an issue Vital to the case and hurtful to appellant.The only evidence upon which the argument could possibly have been predicated had been withdrawn, and the district attorney should have refrained from alluding to it, but, having done so, the court should have promptly directed the jury to disregard it. Sarli v. State, 80 Tex. Cr. R. 161, 189 S. W. 149. (Many other authorities are' collated under note 12, art. 648, Vernon’s Ann. C. C. P. vol. 2.)

For the errors discussed, the judgment is reversed and the cause remanded. 
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