The opinion
ON REHEARING.
December 8, 1915.
HABPEB, Judge.
Appellant has filed a motion.for rehearing in this cause, one of the grounds being that the evidence is of too weak and unsatisfactory character to permit the verdict to stand. The theft of three mules from Mr. Hartgrove is shown beyond the shadow of a doubt; this fact is not questioned in the record. Shortly thereafter the-stolen animals are found in possession of appellant in Oklahoma. At that time he gives no explanation of his possession, hut proceeds to pay Mr. Hartgrove for the stolen animals. If he had any explanation to give of his possession of the stolen animals, then it was it should have been given instead of merely paying for the property when his possession of the mules was challenged. Instead of doing so, he is as-silent as the grave as to how he came in possession of the stolen property. Hnder all of our decisions this testimony has been held sufficient to sustain a verdict. Payne v. State, 21 Texas Crim. App., 184; Morgan v. State, 25 Texas Crim. App., 513; Boberts v. State, 60 Texas. Crim. Rep., 20; Powers v. State, 162 S. W. Rep., 832 , and eases cited.
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The State in making its ease proved by J. C. Bryson, after appellant had returned to Texas, that he had a conversation with appellant in which appellant told him he had purchased the males and could produce the check; that he could produce the check at the proper time. The State also proved by W. E. Farmer that after appellant’s return to Texas he had a talk with him about the mules in question. That appellant said Mr. Hartgrove came to Oklahoma and accused him of stealing the mules, and he paid Hartgrove for them. That he purchased the mules from a Mexican.
After the State had made this proof appellant took the witness stand and testified that he purchased the three mules in question from a Mexican, and paid him one hundred and fifty dollars for them. That he got the money from Fred Taylor, and paid the Mexican in money. That he never told Bryson he gave the Mexican a check for the money.
After having so testified, he desired to prove by E. S. Kirkpatrick that after Hartgrove had claimed the mules and after he had paid Hartgrove for the mules, and after his, appellant’s, return to Texas, that he, appellant, told Kirkpatrick that “he paid the Mexican one hundred and fifty dollars for the mules.” Appellant earnestly insists that we erred in holding that the court did not err in refusing to permit Kirkpatrick to testify that appellant told him after his return to Texas he paid the Mexican one hundred and fifty dollars for the mules. That we must have overlooked the case of Hudson v. State, 90 S. W. Rep., 177 , and desires to know if we intend to overrule that case. It is true our attention was not called to this ease in the brief of counsel or otherwise, at the time the original opinion was written, but we will say that we do not desire nor intend to overrule the rule of law therein announced. In that ease appellant testified on the trial that he was fourteen years of age. On this statement the State sought to impeach him, and introduced three witnesses who testified that Hughes had told them he was sixteen years of age. The court held that Hughes should have been permitted to support his testimony by proving that he testified before the grand jury when carried before them by the district attorney that he was only fourteen years of age. It has always been the rule in this State that when the State seeks to impeach a witness by proof of contradictory statements, he may support his testimony by showing that he had made similar statements to that he testified to on the trial. This is not only the rule announced in the Hudson case, supra, but it has been so held in Williams v. State, 24 Texas Crim. App., 637; Craig v. State, 30 Texas Crim. App., 619; Campbell v. State, 35 Texas Crim. Rep., 160 ; Pitts v. State, 132 S. W. Rep., 801 , and cases cited in Branch’s Crim. Law, sec. 874. But the rule is equally well‘settled in this State that proof of statements made in harmony with his testimony
made after the motive existed
which would likely prompt him to testify falsely can not be introduced to support his testimony on the trial. (Conway v. State, 33 Texas Crim. Rep., 327 ; Sanders v. State, 31 Texas Crim. Rep., 525 ; Anderson v. State, 50 Texas Crim. Rep., 134 ; Porter v. State, 50 S. W. Rep., 380 .) In this case if is made plain that
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it was after appellant had been charged with the theft of these mules, and after he had paid Hartgrove for them, and after he had returned from Oklahoma, that he made the statement to Kirkpatrick, and the same motive existed then to testify falsely as existed on the trial of this case. In the Hudson case it is not made to appear that it was after Hudson had been charged with an offense that he made the statement held to be admissible, and if it did so appear it would not be in harmony with a long list of authorities in this State, and as announced in vol. 7, Ency. of Ev., p. 286. See also Barkley v. Copeland, 74 Cal., 1 ; McCord v. State, 83 Ga., 521 ; Waller v. People, 209 Ill., 284 ; State v. Vincent, 24 Iowa, 570 ; State v. Hendricks, 32 Kan., 559 ; State v. Fontenot, 48 La. Ann., 283 ; Com. v. Jenkins, 10 Gray (Mass.), 485 ; People v. Finnegan, 1 Park Crim. (N. Y.), 147; State v. Exumis, 50 S. E. Rep. (N. C.), 283; Com. v. Brown, 23 Pa., 470 ; State v. McDaniel, 68 S. C., 304; Legere v. State, 111 Tenn., 368 . In addition to this, the State had not sought to impeach the defendant in this case. The State made its case, and in doing so proved by a witness that appellant claimed to have purchased the mules, and when the proper time came said he would produce a check given the Mexican for the mules.- After this testimony had been adduced, appellant took the stand and denied ever having told the State’s witness any such thing. He then testified that he purchased the mules and paid the Mexican in money. After appellant testified the State offered no testimony in rebuttal. So there is no question of impeaching a witness in this case. Again, the alleged testimony of Kirkpatrick would tend no more to support the testimony of appellant than it would tend to support the testimony of the State’s witness. The difference in the testimony is the State’s witness testified that appellant told him he paid the Mexican by giving him a check, and would produce it at the proper time. Appellant says he did not tell the witness this, but testified he paid the Mexican in money. Kirkpatrick’s testimony, as alleged, would only be that appellant told him he paid the Mexican one hundred and fifty dollars for the mules, without saying whether he paid it in money or by giving a check.
Appellant says that we laid too much emphasis on the age of the mules as testified to by the witnesses. Hartgrove testified about the mules found in possession of appellant in Oklahoma as follows': “They were my mules; these mules were taken from my pasture without my consent. I bought these mules from E. B. Noel; they were yearling mules, coming twos — you might say two years old,” making them all the same age.
Appellant said Kirkpatrick called his attention to the mules he claimed to have purchased from the Mexican, and Kirkpatrick testified the mules he called appellant’s attention to were of the following ages: “One of those mules was a yearling mule, and the other would be near two years old; and one of them was a three-vear-old.” This was the testimony on the trial, and we do not think too much emphasis was> placed on this discrepancy in the ages of the mules appellant claimed
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to have purchased from the Mexican. The description did not fit the Hartgrove mules found in his possession.
All the other questions were discussed in the' original opinion, and we do not deem it necessary to do so again, but we have again discussed the above questions owing to the insistence of appellant’s counsel.
The motion for rehearing is overruled.
Overruled.