§ 200. To show intent, or develop the res gestæ.*-On the question of intent, or if of the res gesta, proof of the stealing of other property than that for which defendant is on trial may be admissible.' Thus, in a prosecution for the theft of a horse, it is not error to admit testimony as to the contemporaneous theft of a saddle and other articles, in the same neighborhood, where the court charges the jury that such evidence cannot be considered as tending to show the theft of the horse, but only as tending to show the intent of defendant in whatever action they may find from the evidence was done by him. And on trial for cattle-theft, evidence of the theft of 2 ant's neighborhood, to the effect that they lost hogs about the time when the defendant sold "dressed hogs" and brought them to a witness in a cart, covered with a cloth, one with its head off (the defendant denying the sale and then admitting it in the same conversation), was held to constitute some evidence pertinent to the issue, and to be properly left to the jury.-State v. White, 89 N. C. 463. *See supra, § 1 Holmes v. State, 20 Tex. App. 509; State v. Thomas, 80 La. An. Part I. 600; Com. v. Riggs, 14 Gray, 376; 77 Am. Dec. 333. On the trial of an indictment for larceny in retaining jewelry which the prisoner had obtained from K. & Co., for the purpose of showing it to a customer, with the understanding that he should return the articles unsold, and the money for such as were sold, the prosecution were allowed to prove that the prisoner on the same day and the day following that on which he procured the jewelry from K. & Co., in the same way, procured other jewelry from other persons, which he appropriated to his own use. Held, that the evidence was proper to show felonious intent.-Weyman v. People, 6 Thomp. & C. 696. On a trial for larceny alleged to have been committed by defendants in making a purchase at a store and tendering a $20 bill in payment and receiving smaller bills in change and abstracting one or more of the smaller bills in exchange for the $20 bill, evidence of other acts of defendants of a somewhat similar character, on the same evening, is admissible to show motive.-People v. Williams, 58 Hun 278. But on trial for larceny of jewelry, which has been intrusted to defendant, a broker, for the purpose of selling the same, evidence that three years before the transaction in question he had pawned other jewelry, not shown to have been stolen, is not admissible to show a felonious intent in procuring the goods in question.-People v. Keepers, 8 N. Y. Cr. 146. ? Moore v. State, 28 Tex. App. 377. Where the indictment charged the fraudulent conversion of a borrowed horse with intent to deprive the owner of its value, and the testimony also showed that defendant took without leave a pistol and saddle, the omission to charge that such evidence must be considered only in its bearing upon the intent as to the horse was not material error; and, in the absence of an exception, or request for an others than those charged may be considered, if alike involved in the res gesta, to show guilty knowledge and intent.' § 201. Two offenses part of same transaction.—Under an indictment for larceny, evidence of the subject-matter of another indictment for larceny may be admitted where the two offenses are so connected as to be the parts of the same transaction; as where two horses belonging to different persons are stolen by conspirators in pursuance of a previous design.' Thus, on trial for stealing R.'s sheep, the testimony of W., that his sheep and those of R., which herded together, were driven off together by the same parties, and sold together by the parties driving them off, is admissible as tending to prove the larceny of R.'s sheep.' And where defendant was indicted for the larceny of a watch and some money, and several packages of cigarettes, stolen at the same time, were found in defendant's possession, evidence in reference to the cigarettes was competent.* instruction, the verdict will not be disturbed.-Purcelley v. State, (Tex.) 13 S. W. Rep. 993. 1 Brown v. State, 9 Tex. App. 81; State v. Murphy, 84 N. C. 742; Satterwhite v. State, 6 Tex. App. 609. ? Sartin v. State, 7 Lea 679; Phillips v. People, 57 Barb. 353; aff'd 42 N. Y. 200. 3 People v. Robles, 34 Cal. 591. 4 People v. Ross, 65 Cal. 104. A. stole a ring from a store, substituting for it a cheaper ring, and then, at another store, stole a still more valuable ring, substituting for it that first stolen. Held, on A.'s trial for larceny of the ring last stolen, that evidence of the first theft was competent, and this, even admitting the possibility of the first substitution not being felonious.— Links v. State, 13 Lea 701. CHAPTER XXVI. DECLARATIONS AND ADMISSIONS. § 202. Declarations of the accused. 203. Declarations of husband or wife of accused. 204. Declarations of co-defendants, accomplices, or persons jointly charged. 205. Declarations of owner of stolen property. 206. Declarations of third persons. 207. Admissions, generally. 208. Admissions by silence, or failure to deny. § 202. Declarations of the accused.-What defendants said, at the time the stolen property was found in their possession, is admissible in evidence, as part of the res gesta.' And evidence of declarations of defendant as to the ownership of a horse, alleged to have been stolen by him, made after the delivery of it to him by the owner, is competent to show his intent. So, where a person seeks entry into a house, representing himself to be a gas inspector, and steals from the premises after admission to the same, his declarations made at the time are part of the res gesta, and it is not necessary, on 1 Bennett v. People, 96 Ill. 602; Com. v. Titus, 116 Mass. 42; 17 Am. Rep. 138; State v. Weaver, 104 N. C. 758. The prosecuting attorney was permitted, over objection by the defense, to testify that while the defendant was on bail, and during the previous trial of one O. for the same theft, he (the prosecuting attorney), with the view of using the present defendant as a witness, inquired of him whether the person who was on trial at the time was O., and the defendant replied that said person was not O., but was one M., whom he knew; and the defendant was consequently not used as a witness against O. The defense objected that the defendant was in duress and uncautioned when he made the reply to the witness, and that the latter could not fairly reproduce the reply to the prejudice of the defendant. Held, that the objections were untenable and, under the circumstances, the testimony was not improper.-Dreyer v. State, 11 Tex. App. 631. 2 Rumbo v. State, 28 Tex. App. 30. K., the owner of a stolen mare, found the same in possession of defendant, who claimed to have bought the same from I., and sent K. to see I. about it. Held, that the conversation between K. and I. was admissible against defendant as a part of the original conversation between K. and the defendant.-People v. Clausen, 2 Utah T. 502. Defendant was indicted for stealing a horse. A person who was his trial for larceny, to lay the foundation to contradict them.' But declarations of the accused, made four days after the alleged taking and sale, are no part of the res gestœ.1 § 203. Declarations of husband or wife of accused.Declarations of the prisoner's wife, made in his absence, are not admissible in evidence against him;' and where a husband and wife are jointly indicted, and the wife is tried separately, his declarations cannot be given in evidence against her. § 204. Declarations of co-defendants, accomplices, or persons jointly charged.—On trial of several defendants jointly identified as defendant by a number of witnesses was seen to take the horse from in front of a church, and ride away. Pursuit was made with considerable noise, and about two miles distant, near another church, the horse was found loose. Defendant had entered this church late, and only a short time before the pursuers arrived. Some of the pursuers invited out several of the congregation, and defendant followed unasked, and, on inquiry being made as to who entered the church late, defendant stated that he could prove how he came there, though at that time he did not seem to have been charged with the larceny. Defendant, on trial, denied having taken or ridden the horse. Held, that the evidence justified a conviction.— Stalcup v. State, (Ind.) 28 N. E. Rep. 1116. Defendant's partner in the butcher business authorized defendant to trade his horse for cattle. Held, that evidence by the partner that defendant had told him that he had traded the horse to one M. for certain cattle, including a cow of the same brand as that charged to have been stolen, and that M. had told the partner the same thing, was admissible, though defendant's statements were made before his right to the cow was questioned, and though on his arrest he claimed to have purchased the cow from P., the owner, where M. claimed that he was acting as P.'s agent.-Kegans v. State, 27 Tex. App. 703. 1 State v. Gessner, (La.) 10 So. Rep. 404. • Harmon v. State, 3 Tex. App. 51. Compare Hester v. Commonwealth, 85 Pa. St. 139. 8 People v. Simonds, 19 Cal. 275. 4 Kingen v. State, 50 Ind. 557. Where, on being questioned by a constable, as to where he bought certain goods, the prisoner replied, "I cannot say; my wife will make out a list;" and the following day the wife handed the list to another constable in the presence of the prisoner, saying: "This is a list of what we bought and what we paid for them," it was held that the list was admissible against the prisoner on his trial for receiving the goods-Reg. v. Mallory, 32 W. R 721. Where the testimony showed a theft of hogs by the husband, and that the hogs had been driven home by him and there slaughtered, false statements made by his wife as to the stolen property are not evidence of her guilt, in the absence of any proof of her participation in the inception or execution of the offense.- Porter v. State, 43 Tex. 367. 2 indicted for theft, declarations of any one of them, made when the property was first found in their possession and explanatory of their possession of it, are verbal acts and res gestæ, and are admissible in evidence on the trial of the defendants or any one of them.' And statements made to a thief at the time of the larceny are admissible against his accessory before the fact, as part of the res gesto. So, on trial for larceny of a horse, declarations and doings of an accomplice while trying to sell the horse, are admissible.' Upon a trial of two jointly, for larceny, the declarations of one, being competent against him, are not to be excluded because they have a tendency to convict the other. Thus when two are jointly indicted and have separate trials, and there is evidence tending to prove a conspiracy between them to commit the crime, on the trial of one, evidence on behalf of the prosecution may be received of a conversation between the other and a third person, in which admissions were made, even if the one on trial was not present." So, where two persons charged with a larceny, having the stolen property in their possession, were taken into custody by a police officer, the declarations of one of them, assuming to speak for and implicate both, made to the officer in the presence and hearing of the other person charged, who remained silent, are competent evidence for the State on the trial of the latter. And in a prosecution for larceny, evidence as to acts of another person, committed in the presence of the defendant, and showing a connection between them, are admissible although no conspiracy between them to steal has been shown.' But the statements of an accomplice not given as testimony in the case, 1 Shelton v. State, 11 Tex. App. 36. & State v. Cole, 22 Kan. 474. "Murphy v. State, 36 Ohio St. 628. On a trial for the theft of a mare branded H. O. F., the theory of the State being that defendant and M. acted together in the theft, it is proper to permit a witness to testify that defendant and M. told him that they were jointly interested in the H. O. F. brand.-Huffman v. State, 28 Tex. App. 174. 'People v. Wilson, 66 Cal. 370. |