Tom Coffelt v. The State, 19 Tex. Ct. App. 436

Hurt, Judge. This is a conviction for the theft of a steer, the property of George Hill. Hood and Bledsoe were the only witnesses by whom the State established the charge against defendant. Hill, the alleged owner, testified that he owned a certain steer of the same color, brand and marks as the one Wood and Bledsoe swore that defendant killed, and that he had not given his consent to the taking.

It appears that Hood had lived seven or eight years in a certain neighborhood, and that some eight or ten months prior to the trial of this cause, he had left and settled in another neighborhood, within about ten miles of the first. Upon the trial defendant attempted to prove that Hood’s general reputation for truth and veracity in the first neighborhood was bad. This was not permitted by the court, and he reserved his bill of exceptions.

We gather from the various bills of exceptions relating to this matter (for there are several), that the learned judge labored under the belief that the testimony as to character must be confined to his reputation in the neighborhood in which the witness then, at the time of the trial, lived. This view of the question is erroneous. Upon this subject Mr. Wharton, in his work on Evidence, says: “ The impeaching witness, it has been frequently ruled, must be asked, as a preliminary question, as to the impeached witness’s general character or reputation for truth and veracity in the community in which he has lived.

It is inadmissible to ask what character the impeached witness had in a neighborhood in which he was a non-resident; or at a period long prior to that of the trial.” A witness may not have acquired a character either as a truthful or untruthful person because of the very short length of time he has resided in the community of his present domicile, and still in his previous neighborhood his character may be formed and established.

To hold that the party against whom he has testified is confined to his last neighborhood,— that in which the witness resides at the time of the trial,— would, in a great many cases, be a subversion of the law permitting this method of impeachment. As in this case, not having resided in his present community a sufficient time, no character is developed to his neighbors, and hence the party to be affected by his evidence could not impeach him in this manner at all.

But, as we have found, a party will not be deprived of this right if he can prove that in a prior community the witness has developed a character among his neighbors. Persons acquainted with this character,— that developed in other communities than the one in which he now lives,— may swear to his reputation,— that made in the neighborhood in which the witness formerly lived. We will not further discuss the question, as it has been determined by this court in favor of the position of appellant. (Lum v. The State, 11 Texas Ct.

App., 483.) We will not analyze the testimony of Hood and Bledsoe, nor discuss the same with relation to the surrounding facts, feeling certain that when closely scrutinized it will place those men at least in a very-suspicious attitude. If not accomplices beyond question, evidently the facts and surroundings are so suspicious that the question of accomplice or no accomplice should have been submitted to the jury, and the jury properly instructed as to the rule in the event they should believe them or either of them to be accomplices.

Neither Hood nor Bledsoe knew the steer to be the property of Hill; all that they knew upon this subject was that defendant killed, butchered, etc., a certain steer of a certain color, with certain marks and brands. Hill swears that he owned, in August, 1884, a steer suiting the description of, and marked and branded with the same mark and brand as the one said by Hood and Bledsoe to have been killed by defendant. Hill does not pretend to say that the steer killed by defendant was his property; nor does either Hood or Bledsoe state that said steer was the property of Hill.

The brand not being recorded as the law directs, appellant insists that proof that Hill was the owner of the steer was not sufficient, and hence a new trial should have been granted. How unless the brand was recorded it cannot furnish any evidence of ownership of the steer whatever. It, however, is admissible, not to prove title in Hill, but for the purpose of identifying the steer so that the witnesses may prove title in Hill by other methods, such as flesh-marks, etc. And when admitted in evidence the court should, by proper instructions, inform the jury for what purpose an unrecorded brand could be used.

The statute which excludes unrecorded brands as evidence of title or ownership does not apply to unrecorded marks, and hence, in passing upon the sufficiency of the evidence to prove title in Hill, we must take into consideration the mark as well as all the other facts bearing upon this point. Í Looking, then, to all the facts relating to the question of ownership, we are not prepared to say that the proof of ownership in Hill was not sufficient.

Appellant proposed, for the purpose of strengthening the other circumstances which tended to prove that Hood and Bledsoe were accomplices, to prove that their general reputation for honesty was bad. To this the district attorney objected, and the court sustained the objection; to which the defendant excepted and reserved his bills of exceptions. In Dubose v. The State, 10 Texas Ct.

App., 230, we held that any and all testimony which would be competent if the witness himself was on trial for the offense was also admissible to prove that the witness w_as an accomplice; and this rule obtains without reference to whether the party on trial is indicted as an accomplice, principal or accessary. To illustrate: suppose that the party is being tried as a principal; evidence which would be competent if the witness were on trial as principal, accomplice or accessary would be admissible to show that the witness was an accomplice either as principal, accomplice or accessary.

We, however, have not found any authority for extending the rule so as to admit evidence for the purpose of establishing that a witness was an accomplice that would not be competent if the witness himself were on trial for the same offense either as principal, accomplice or accessary. If, therefore, Hood or Bledsoe was on trial, either as principal, accomplice or accessary, for the theft of Hill’s steer, would it be competent for the State to prove that his general reputation for honesty was bad? Evidently not. We therefore conclude that there was no error in rejecting the proposed evidence.

For the error in refusing to give in charge to the jury the special instructions asked by appellant upon the subject of accomplices, and because the court refused to permit appellant to prove the general bad character of Hood in the community in which he had formerly lived, the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered November 25, 1885.]