
    NOWLIN v. STATE.
    (No. 3494.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Burglary <&wkey;38 — Evidence — Possession or Goods.
    In prosecution for the burglary of a box car, testimony of officers who searched defendant’s house that they found in his trunk two shirts identified as those stolen, that he denied that they were his, and claimed that they had been bought by his brother-in-law, that his sister in his presence denied that, and stated that defendant had brought them there, and that defendant made no reply to her statement, was admissible.
    [Ed. Note. — Eor other cases, see Burglary, Cent. Dig. § 91; Dec. Dig. <&wkey;38J
    2. Criminal Law <&wkey;742, 743 — Question 3?ob Jury — Credibility of Witnesses.
    In a prosecution for burglary, the credibility of defendant and of the officers testifying against him held for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1098, 1138, 1719-1722; Dec. Dig. &wkey;742, 743.]
    3.Criminal Law <&wkey;510 — Testimony of Accomplice-Corroboration.
    In a prosecution for the burglary of a box car and the taking of certain clothes therefrom, where the testimony of an accomplice that he and defendant had previously broken into a car and taken certain clothes was introduced to show the system of the offenses, the state, by other than accomplice evidence, should have identified the articles taken on the former breaking.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1124^-1120; Dec. Dig. &wkey;> 510.]
    4. Criminal Law <&wkey;819 — Trial — Withdrawal 03? Instructions.
    Under Code Or. Proc. 1911, art. 737a, added by Acts 33d Leg. c. 138, requiring the court to deliver his charge before the argument, and in view of the purpose of the article which changed the previous law under which the court was required to charge after the argument, the court, if convinced that an erroneous charge against accused has been given,'may withdraw and correct it before the verdict.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1992; Dec. Dig. <S&wkey;819.]
    5. Criminal Law <&wkey;699 — Trial — Change in Charge — Right to Argue.
    Whore the defendant in good faith desired to argue the matter after the court had withdrawn part of its charge delivered before the argument and substituted a different charge, the denial of a reasonable time for such argument deprived defendant of a valuable right, and was prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1655, 1656; Dec. Dig. <S=> 699.]
    6. Criminal Law <&wkey;763, 704 — Instructions —Weight of Evidence.
    In a prosecution for the burglary of a box car, a charge that the evidence tending to connect defendant with another and previous burglary of a car could only be considered on the issue of whether defendant’s explanation of his possession of stolen goods was true, and that defendant could not be convicted of the breaking of any other car than that charged, was erroneous, as being a charge on the weight- of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. &wkey;>763, 764.]
    7. Criminal Law <&wkey;372 — Evidence—Other Offenses.
    In a prosecution for the burglary of a box car, where defendant claimed that certain clothing found at his' house had been bought by him from a certain named person, evidence that such clothing had been taken by defendant and another on another and previous breaking of a car was admissible to rebut the defense, though evidence of other independent crimes is ordinarily inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. &wkey;> 372.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Tom Nowlin was convicted of burglary of a box car, and he appeals.
    Reversed and remanded.
    Chas. E. Witt, of Ft. Worth, and Chas. B. Braun and Witt & Saunders, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the burglary of a box car.

The uncontroverted testimony shows that on the night of August 16, 1914, a box car in charge of the agent of one of the railroads running into Waco was burglarized and a large amount of merchandise stolen out of it at the time. Some of said merchandise was found in and above the ceiling of the building of the railroad company, used by appellant and other employes. Also others of the goods were found in another place. M. L. De Lay, who, by his own testimony, was one of the participants in the burglary and theft, testified that appellant was one of the parties who was also guilty of the burglary and theft. Appellant testified. He did not deny that a burglary of said car and theft of goods therefrom had been committed, but he denied any participancy whatever therein or any knowledge thereof, and testified that he was not at said burglarized car at the time it was burglarized, nor had anything to do with it, but was at another location in the yards of the company at the time, and he also introduced another witness Brun, whose testimony tended to show the same thing. It thereupon became important for the state to introduce other evidence than that of the confessed participant De Lay to show that appellant was present and participated in the burglary and theft from said-car, and corroborate De Lay.

S. S. Fleming, the sheriff and his deputy, Lee Jenkins, both testified, in substance, that soon after the burglary they were informed of it and began an investigation to find the stolen goods and to ascertain the guilty parties; that they went to appellant’s home, found him there, and searched his house; that they found in his and his brother-in-law’s trunk, among others, two shirts which were amply identified as two of the shirts stolen from said burglarized car. They also found there, in appellant’s possession, a certain coat which was produced and identified on the trial. Said officers further testified that, when they found said two shirts in appellant’s trunk, he at first denied that they were his, claiming that they were his hrother-in-law’s, who had bought them. This occurred in the presence of appellant’s sister, and she, in his presence, denied this, and stated that he (appellant) had brought them there, and that they were not her husband’s. Appellant made no reply to this. The officers, on the trial, produced and identified the shirts they claimed they got out of appellant’s trunk. Appellant, in his testimony, denied that they had gotten these, and himself produced others and identified them, claiming those he produced, and not those produced by the officers, were those they got out of his trunk. All this testimony by the officers was admissible and pertinent, even though appellant, on the trial, denied that the two shirts the officers identified were those taken by them out of his trunk, and swore that he had never seen them or had them in his possession.

The question of whether he or the officers were correct was a question for the jury.

After appellant himself testified that he did not participate in said burglary of August 16th and had nothing to do with it, etc., and had his witness Brun to testify, as stated, the state then in rebuttal reintroduced De Lay, who, in effect, testified that on the night of July 31, 1914, he and appellant at night burglarized another car in said same railroad yard and took therefrom certain men’s clothing; that they took these clothes that night to the house of a negro, Walter Jones, and his wife, Josie, and left them there till next morning. Walter and Josie Jones both, in substance, testified, corroborating De Lay about he and appellant bringing said clothes to and leaving them in their house that night; that the next morning appellant came to their house with a large suit case, got all the clothes, except one pair of pants, which Nowlin gave to Walter Jones. De Lay further testified that appellant sent the suit case with the clothes in it by another negro to him, directed that he get out the clothes he (De Lay) wanted, and waited across the street in sight for this to be done; that De Lay took out the clothes he wanted, and the negro took the others in the suit case back to Nowlin. The officers got said pair of pants from Walter Jones, and they were produced and identified on the trial of this case. The state claimed that said coat the officers found in appellant’s possession at the time they searched his house was one of the articles stolen out of said car on July 31st. The circumstances might probably show this. At least, they so tended. ’ The officers testified that, when they found this coat at appellant’s house, he claimed he had bought it from Mr. Loch-ridge. He denied in his testimony that he so told the officers, but said he told them that he bought it from Mr. Burnett. The state introduced Mr. Lochridge’s clerk (Loch-ridge himself being out of the state at the time of the trial), who testified that said coat did not come from Loehridge’s stock. Mr. Burnett testified in substance that he had not sold said coat to appellant.

The state introduced no other testimony than that of De Lay, except perhaps some circumstances that said car was burglarized on the night of July 31st, nor that either or both said coat and pants were stolen from it at the time. If this be true, the state should have proven it by testimony, in addition to that of De Lay, to corroborate him at least, and to identify said coat and pants as stolen therefrom.

All this testimony about the burglary of said car on July 81st, and that appellant and De Lay took some of the stolen articles to the house of said negro and left them there and subsequently got them, and all about the pants left with the negro, and the said coat found in appellant’s possession, was admitted over appellant’s obj'ections. He contends that it was about a separate and distinct crime committed at a different time, and was wholly inadmissible in this case for any purpose. At the time the court admitted it, the state claimed that it was admissible for the purpose of showing system, and the court admitted it on that theory.

When the court prepared Ms charge, he, in effect, told the j'ury that he admitted said testimony “to establish the identity in developing the res gestae and system of the alleged offense, or to prove the guilt of the accused by circumstances connected with the burglary charged, or to show intent, etc.,” and that the jury could consider it for those purposes only. In accordance with the statute, when the judge prepared his charge, he gave it to appellant’s attorneys to make objections thereto, if any they had. Appellant’s attorneys then objected to said charge for various reasons. It seems the court still adhered to the charge and made no change therein upon appellant’s objections thereto, and, as thus prepared, read it to the jury. The attorneys for both sides then argued the case and completed their argument. After this, the court, it seems, concluded that he had made a mistake on this point in his charge and had permitted the jury thereby to consider said testimony for improper purposes. Thereupon he took out that charge, told the jury not to consider it, and substituted in place of it this charge:

“In this case there has been admitted in evidence facts which you may find tend to connect the defendant with the burglarious entry of a railroad car, other than that alleged in the indictment, and at a time prior to that alleged in the indictment, and you are instructed that you cap only consider such testimony for the purpose for which it was admitted, wMch is the defendant accounted for his possession of certain property found in his possession in a manner consistent with his innocence. The evidence as to a prior burglary was admitted before you for the sole purpose of showing whether or not his explanation of his possession was true, and you will not consider said evidence for any other purpose whatevei-. And, in this connection, you are instructed that the railroad car charged in the indictment to have been entered is identified by the evidence as H. & T. 0. car No. 11213, and you cannot convict the defendant and return a verdict of guilty for an entry of any other car, though you might find and conclude from the evidence that defendant committed the offense of burglary on another and different occasion.”

When the court did this, appellant objected, claiming that it was on the weight of the evidence in several particulars, specifying them, and that there was no evidence, other than that of said accomplice De Lay, which shows or tends to show the burglarious entry of any car on the night of July 31st. And he specially excepted to it further that at that stage of the trial the court could not further charge the jury at all, but if the court, notwithstanding his objections, at that time would so change his charge, they demanded the privilege of arguing that feature of the matter before the jury. The court inquired how long they wanted to argue that point. The attorneys replied they wanted rather a long time. E. E. Witt and W. R. Saunders were law partners at the time. Mr. E. E. Witt had not participated in the trial, but Charles E. Witt and Mr. Saunders, as attorneys for appellant, had conducted the trial. Mr. E. E. Witt happened in the courtroom at the time when this matter was before the judge. The judge refused to permit either of the attorneys who participated in the trial to argue the point, but offered to let Mr. E. B. Witt do so. Mr. E. E. Witt declined to make any argument at all, because he had not been engaged in the trial.

The inference can well be drawn from all that occurred that appellant’s attorneys in arguing his case before the jury in this particular may have tended to convince the court and jury that the said charge he had given was inapplicable, and that the said testimony was not admissible for the purposes the judge had expressly stated it was in his charge; but whether the attorneys’ argument so convinced him or not, at any rate, at that late time he changed his opinion and charge and restricted the jury to the consideration of it for a purpose entirely different from what he had originally charged.

Before the act of April 5, 1913 (Acts 33d Leg c. 138), amending articles 735, 737, and 743, and adding article 737a to our Criminal Procedure, the statute required the judge to deliver -his charge to the jury after all the argument was concluded. These articles now require the judge to deliver his charge before the argument; and, if article 737a is to be literally construed, the court has no right over appellant’s objection to change his charge or give any additional charge, in any contingency after the argument has been concluded, except those mentioned in this article. But we believe that taking all of our statutes and previous decisions into consideration, and the purpose and object of the Legislature in making the changes by said act of 1913, said article 737a should not be construed to prohibit the court absolutely under all circumstances from changing or adding to his charge. For instance, if the court should become convinced that an erroneous charge against the accused had been given, he should not be precluded from withdrawing it and correcting the matter before the verdict. Otherwise, trials in some instances would be mere farces, for, when the jury returned a verdict of guilty under such an erroneous charge, the court would be under the necessity of at once setting the verdict aside and retrying the whole case. Taking this case as an illustration, we think it clear that the court’s first charge on this subject was erroneous and against appellant. The court ought, in a proper way, to have corrected the matter.

However, we conclude from the whole record that appellant in good faith desired to argue the question when the court changed his charge, and he was deprived of a valuable right, prejudicial to him by not being permitted to do so. The court could reasonably regulate the time allowed for such argument. He need not have given the appellant’s attorneys a very long time, but he should have given them a reasonable time.

Besides this, we think the said charge given was upon the weight of the evidence in substantially the particulars specified by appellant at the time. For these errors the judgment must be reversed.

The rule that independent crimes by an accused are ordinarily inadmissible is too well established to need discussion. Bowman v. State, 70 Tex. Cr. R. 22, 155 S. W. 940, where some of the cases are collated. But it is as' equally well established that there are certain exceptions to this rule which are as well settled as the rule itself. Mr. Wharton, in his Criminal Evidence, vol. 1, § 31, states these exceptions. They have been approved and copied time and again in the decisions of this court. Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 60. Among them, stated by Mr Wharton, are: (8) To rebut special defenses. If, on another trial, the state should introduce proof in addition to De Lay’s evidence to show that said car was burglarized on the night of July 31st, and said pair of pants, claimed to have been delivered by appellant to the negro Walter Jones, and the said coat the officers claimed they found in appellant’s possession, are reasonably identified as a part of the property stolen out of said car on July 31st, then it is our opinion that the court should admit in evidence the said testimony about the burglary of said car and the goods taken therefrom on July 31st, which was objected to-by appellant, and we think the evidence in that event would he admissible for the purpose above specified. However, if that proof is not made, then the court should exclude all of said evidence admitted on this trial about the burglary of said car on July 31st. Wyatt v. State, 55 Tex. Cr. R. 74, 114 S. W. 812; Wright v. State, 56 Tex. Cr. R. 357, 120 S. W. 458; Hall v. State, 31 Tex. Cr. R. 566, 21 S. W. 368; Wharton, Cr. Ev. § 41; People v. Cunningham, 66 Cal. 668, 4 Pac. 1144, 6 Pac. 700, 846.

We deem it unnecessary to discuss any other question raised. We think, no other error is pointed out.

The judgment is reversed, and the cause remanded. 
      <&wkey;For other oases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     