Harrison Washington v. The State, 17 Tex. Ct. App. 197

Willson, Jüdge. I. It is not a valid objection to the indictment that it does not specify the property which it is alleged the defendant intended to steal. All the essential elements of theft are alleged in the words of the statute defining that offense, and this is all that is required in an indictment for burglary with the intent to commit theft. An indictment such as the one in this case was held sufficient in Lawson v. The State, 13 Texas Ct. App., 264.

If the indictment had been for theft, it would have been required, for the purpose of identitjq that the particular property stolen should be named and described in the manner prescribed by statute. (Code Grim, Proc., art. 427; Williams v. The State, 5 Texas Ct. App., 116.) In holding the indictment in this case to be sufficient, we are not in conflict with the rule laid down in Rodrigues v. The State, 12 Texas Ct.

App., 552, and the cases therein cited, which requires that an indictment for burglary must allege the particular felony intended to be committed, and describe the same by setting forth its statutory ingredients or essential elements. It is not a statutory ingredient or essential element of the offense of theft that the property stolen should be a particular kind of corporeal personal property. In a charge of theft it is only necessary to specify the property stolen for the purpose of identification, and not because the description of the property is an ingredient or element of the offense.

It is an ingredient or element of theft that the property taken be corporeal personal property of some value, and if the indictment had failed to allege that the property intended to be stolen was of that character, it would have been a bad indictment; but there is no such omission in the indictment before us. II. Defendant’s wife testified in his behalf, and on cross-examinatian by State’s counsel was asked if she had not told witness Knight, when he went to defendant’s house in search of the meat, that there was no meat at the house. She answered that she did not make said statement.

The State then proved by Knight that, on the occasion referred to, she told him there was no meat at the house; that she had cooked the last there was on the place that morning for breakfast. Defendant was not present when she made this statement to witness Knight. This testimony was admitted over the defendant’s objections, and he saved a bill of exceptions thereto. We think the court erred in admitting this evidence. It was certainly not competent evidence against the defendant, being hearsay. No statements made by her, when he was not present, and acquiescing therein, could be properly admitted against him.

If admissible at all, it would only be for the purpose of affecting the credibility of the witness, and this seems to have been the purpose for which it was admitted in this case. While it is true that she was subject to cross-examination like any other witness, it is also true that such cross-examination must be confined strictly to the matters about which she has testified on the examination in chief. (Creamer v. The State, 31 Texas, 173; Greenwood v.

The State, 35 Texas, 587.) On her examination in chief, she had made no statement whatever about meat, whether or not there was any at their house at the time named. If she had stated on her examination in chief that there was or was not meat at the house at that time, it would have been competent for the State to ask her, on cross-examination, if she had not made contradictory statements, laying the predicate in the proper manner, and upon her denying that she had made such statements, it would have been permissible for the State to prove that she had. (Hampton v.

The State, 45 Texas, 154.) But having testified nothing about the meat, it was not proper to allow the State to ask her concerning it, even for the purpose of impeaching her testimony. It was indirectly causing her to testify against her husband, under cover of laying a predicate to impeach her testimony in regard to a matter about which she had not testified on her examination in chief. In view of the facts of this case, this illegal evidence was of a material character, and calculated, in our opinion, to prejudice the rights of the defendant.

The jury were not even cautioned by the court that they must confine their consideration of this evidence strictljr to the purpose for which it was admitted, that is, for the purpose of affecting the credibility of the witness. Even had the evidence been admissible for this purpose, the court should have instructed the jury that it must not be considered by them for any other purpose. Because the court erred in admitting said evidence, the judgment is reversed and the cause is remanded. Reversed arid remanded. [Opinion delivered November 26, 1884.]