Jim Gilbraith v. The State, 41 Tex. 567

Moore, Associate Justice.

The judgment in this case .r'mst be reversed for the error of the court in admitting ■ evidence for the State, tending to prove appellant had committed the theft of a steer belonging to a different party than the -owner of the animal mentioned in the indictment, as it seemed to be supposed, about the same time when the offense was" committed for which he is indicted. • There are, unquestionably, cases in which it is admissible, in support of the charge against the defendant, to adduce evidence which may refer to and be more directly connected with other offenses than the one for which he is on trial, or even to go directly into and show other criminal transactions of a similar character.

Such evidence, however, is admitted mainly when it is necessary to establish identity in developing the res gestee, or in making out the guilt of the defendant by a chain of circumstances connected with the crime for which he is on trial. (Mason v. The State, 42 Ala., 532.) But much the larger class of cases, where proof of another crime is admissible as direct evidence against the accused, is when the intent with which a particular act is done may be the gist of the offense- (1 Bish. Crim.

Proc., sec. 1067, note 4.) Without undertaking to say that the evidence admitted over the objections of appellant might not be shown to be proper, by a more full- and accurate presentation of the facts than is done by the evidently imperfect record on which the case is now presented, (which shows by bill of exceptions and the charge of the court that testimony went to the jury which is not incorporated in the statement of facts,) we are unable to see, as the case now standsy upon what ground it should have been admitted.

It served in no way to identify the thing stolen, or connect the defendant with the offense for which he-was on'trial. It forms-no part of the res gestee. As here presented, it is not apparently a link in a chain of circumstances provi'ng appellant’s guilt of the theft with which he is charged.

And the indictmentbeing for theft, and nothing presented from which it can be seen that there was any question before the court as to the intent with which the defendant may have acted, if it was admitted that any such defense could have been set up by him, it is not seen how it was material for this purpose on any issue in the case,' The judgment is reversed and the cause remanded. Reversed and remanded.