Albert Bookser v. The State, 26 Tex. Ct. App. 593

Hurt, Judge. Appellant and Switzer and Voight were found in possession of, and were skinning, a stolen cow which was well known to them. After discovering these parties in the act of skinning the cow in a slaughter house, the witness left and soon returned with an officer and posse.

When they entered and arrested Switzer and Voight, they (Switzer and Yoight) said: “Arrest Albert Bookser ; he is the guilty one if anything is wrong.” A witness stated that, as he approached the slaughter house, he heard some one inside the slaughter house say: “Arrest Albert Bookser; he is the guilty one, if anybody is guilty.” As the officers approached the house, a man was seen leaving rapidly, and the circumstances point with great force to appellant as being the man. Opinion delivered December 19, 1888.

But it is a fact that the evidence fails to show with any degree of certainty that appellant was present or heard the remarks of Switzer or Yoight. If not present, or if he did not hear the remarks, he was not bound by them. The rule being that the accused must be present, or at least it must reasonably appear that he heard the statements of others, before they can be made evidence against him. This must be shown affirmatively by the prosecution, though it may be done by circumstances.

The Assistant Attorney General contends that a conspiracy is shown and was not consummated, and hence the declarations of Switzer and Yoight—co-conspirators—were admissible. Let us concede, for the argument, the conspiracy,and that it was not at an end. Evidently the exclamation of Switzer and Yoight —“Arrest Albert Bookser; he is the guilty party if anything is wrong”—was not in furtherance of the common design; did not ' aid in the consummation of the conspiracy. Appellant’s objections to this matter should have been sustained.

We are also of opinion that the charge of the court upon the rule applicable to a case of circumstantial evidence is not sufficiently full. For the correct rule see Willson’s Criminal Forms,

section 714. The judgment is reversed and the cause remanded for another trial. Reversed and remanded.