# Cascio v. State > Court of Criminal Appeals of Texas · April 28, 1943 · 146 Tex. Crim. 49 URL: https://www.frixlaw.com/law-library/cases/4900872 ## Case - **Full name:** Nick Cascio v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** April 28, 1943 - **Citations:** 146 Tex. Crim. 49; 171 S.W.2d 356; 1943 Tex. Crim. App. LEXIS 475 - **Precedential status:** Published - **Opinion:** Dissent by Graves - **Judges:** Beauchamp, Graves, Hawkins - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4900872 ## Opinion text GRAVES, Judge (Dissenting). The gist of the herein charged offense is whether or not appellant took the tire of Mr. Massey. It is shown by proof that appellant was seen prowling near the car of Selvidge, a car having driven up near the Selvidge car, and one person standing near the Selvidge car, and some one broke the lock of the Selvidge car and stole a tire, appellant being identified at this *59 place. Again, a dark colored car drove up near Mr. Massey’s car and some one got out, one person standing near the dark colored car, and another prowling near the Massey car, and some one broke the lock of the Massey car and stole the tire, neither party being identified. Next, a dark colored car came up to the Goen’s funeral home and stopped, one person getting out and being near the car, and soon thereafter another person appeared, and the lock on said ear was shown to have been tampered with, appellant being identified as one of the persons present at the Goen’s funeral home, as well as one of the persons present at the Selvidge car, the only difference in the two transactions being that the Selvidge stolen tire was found in appellant’s car, and the lock on the car at the funeral home had merely been tampered with, but not broken, hence no completed theft at the funeral home. If the theft of the Selvidge tire was admissible, it seems to me that the effort at theft of the Goen’s tire would also be admissible in order to show who had stolen the Massey tire. The two thefts and the attempted one all having occurred at between ten and eleven o’clock the same night. System is admissible not only to establish identity but also oftentimes to show intent. As showing identity herein, it seems that each time appellant is identified as being present, the offense was committed in a peculiar way and under similar circumstances. The prowlers drive up near a parked car, one remains near the car and probably keeps watch, the other tries to affect an entrance to parked cars, eventually tampering with the lock of the car, breaking it and stealing the tire therefrom; then on to another theft, performed under similar circumstances. If the Selvidge theft was admissible in order to show who took Massey’s tire, then I think the effort at theft of the Geon’s tire would also be admissible for whatever it might be worth. Under the doctrine of establishing the identity of the person who took the Massey tire, I think the system and manner of both of such actions upon the part of appellant, who was shown to have been present at each, would be of assistance to the jury in deciding who stole Massey’s tire, it being the only one of the three transactions wherein appellant was not identified by witnesses, although all were performed in the same or similar manner. Mr. Branch, in his Penal Code, p. 1285, Sec. 2347, has this to say: “Proof of other offenses is admissible if such proof is a part of the res gestae of the alleged offense for which defendant *60 is being tried, or if it tends to show intent when intent is an issue, or serves to prove identity when identity is an issue, or when it is sought to show the guilt of defendant by circumstantial evidence and such proof of another offense connects or tends to connect the defendant with the alleged offense for which he is being tried, or when it tends to defeat the defensive theory. Kelley v. State, 31 Texas Crim. Rep. 211 ; 20 S. W. 365 ; Dawson v. State, 32 Texas Crim. Rep. 552 , 25 S. W. 21 ; Mixon v. State, 31 S. W. 408 ; Fielder v. State, 40 Texas Crim. Rep. 187 , 49 S. W. 376 ; Camarillo v. State, 68 S. W. 795 ; Bright v. State, 74 S. W. 912 ; Perry v. State, 78 S. W. 513 ; Penrice v. State, 105 S. W. 797 ; Johnson v. State, 52 Texas Crim. Rep. 202 , 107 S. W. 52 ; Snodgrass v. State, 148 S. W. 1095 ; Stephens v. State, 154 S. W. 1001 ; Serrato v. State, 171 S. W. 1142 ; Johns v. State, 174 S. W. 610 ; Nowlin v. State, 175 S. W. 1070 ; Williams v. State, 285 S. W. 616 ; Kaufman v. State, 70 Tex. Cr. R. 440 .” In the first case above, quoted, Kelley v. State, 31 Tex. Cr. R. 213 , 20 S. W. 365 , the accused was charged with the burglary of a photograph gallery. Proof of a further like burglary of such a gallery was also made at such time, as well as another and different burglary many miles away from the town in which such first two burglaries were committed, a portion of the stolen goods being found in the accused’s possession at the time of his arrest. Judge.Davidson said in that case: “If the evidence tends to establish the res gestae, or to prove a relative or competent fact or circumstance connecting defendant with the crime charged, or to explain the intent of defendant in his connection with the property he is charged with stealing, or to make out his guilt by circumstances, it is competent for the State to adduce evidence of such extraneous crimes. House v. The State, 16 Texas Ct. App. 25; Kelley v. The State, 18 Texas Ct. App. 262; Musgrove v. The State, 28 Texas Ct. App. 57; Nixon v. The State, ante, p. 205; Whart. Crim. Ev., sec. 31.” In the case of Fielder v. State, 40 Tex. Cr. R. 187 , 49 S. W. 376 , the accused was charged with a burglary of the house of one Doty. The State proved a burglary and theft from the house of Davis eight miles away from Doty’s house, and the theft of a saddle from Pool four miles further away, or a total of twelve miles from the Doty house, the first of the burglaries being in the daytime and the two latter ones in the nightime of the same day. This court disposed of this matter as follows: “The testimony objected to was a part of the res gestae of the transaction charged against defendant, and served to *61 identify appellant, and connect him with the offense for which he was on trial; and, moreover, it appears to have been a part of a system embracing the offense charged. Appellant and his companion, Berryhill, seem to have been riding through the country. They first burglarized Doty’s premises, in the daytime, the family being absent. They then proceeded on their way westward, and about 12 o’clock at night burglarized the premises of Davis, and took a saddle from his barn. They then proceeded on their journey, and about four or five miles further on stole from the premises of one Pool a saddle. They still pursued their journey to Raynor, in Stonewall County, where they were arrested two or three days later, with property taken from each of said premises in their possession. We think the testimony was admissible.” The gist of the proposition now under discussion is the admission of other or extraneous offenses for the purpose of establishing certain elements of the presently charged offense. Mr. Wharton in his work of Criminal Evidence, Vol. 1, Tenth Ed., Sec. 30, lays down the general doctrine that an accused ought not to be convicted of a crime simply because he has been guilty of another offense, and forbids the introduction of such offense for the sole purpose of showing that by the commission of one crime the accused would likely commit another offense. However, he goes further in Sec. 31, and says “certain exceptions exist to the rule just stated.” These exceptions fall under the following general divisions: (1) As part of the res gestae; (2) to prove identity of person or of crime; (3) to prove scienter or guilty knowledge; (4) to prove intent; (5) to show motive; (6) to prove system; (7) to prove malice; (8) to rebut special defenses; (9) relevancy in various particular crimes, and (10) we add, relevancy under a state of facts to be established by circumstances alone. Again, Wharton on Criminal Evidence says, Sec. 39: “When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts, the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate they are part of a system. In order to prove purpose or design, evidence of system is relevant; and in order to prove system, collateral and isolated offense are admissible from *62 which system may be inferred, or where crimes are so mutually connected or interdependent that the proof of one is not coherent without evidence of the other. But to be admissible as relevant under system the collateral, extraneous or independent offense must be one that forms a link in the chain of circumstances and is directly connected with the charge on trial.” Mr. Underhill on Criminal Evidence, 2Ed., Sec. 90, says: “All evidence is relevant which shows, or tends to throw, any light upon the guilt or innocence of the prisoner, and relative evidence which is introduced to prove any material fact ought not to be rejected merely because it proves, or tends to prove, that at some other time or at the same time the accused has been guilty of some other separate, independent and dissimilar crime. The rule is well settled that all evidence must be relevant. If evidence is relevant upon* the general issue of guilt or innocence, no valid reason exists for its rejection merely because it may prove, or tend to prove, that the accused committed some other crime, or may establish some collateral and unrelated fact.” This proposition being supported by a long line of cases from many courts of the Union. The main fact to be established herein is who took Mr. Massey’s tire? Although appellant was seen and identified at Chilton Hall, where the Selvidge tire was taken, no one identifies him as the person present when Massey’s tire was taken. This identification had to be made by circumstances. One of such circumstances was the presence of the Massey tire in the overturned car which appellant was identified as driving, and the further fact of his identity being established at the scene of the theft of the Selvidge tire. Then I think a further strong circumstance leading to his identification would be his presence at the Goen’s car, the lock of which had been tampered with, such lock tampering having been present in each of the tire thefts. Again, I think the Kelley case and the Fielder case, supra, are authority that the Goen’s incident was admissible as res gestae, as part of the whole transaction, performed in the same way and at practically the same time. Again, I think such Goen’s incident was a part of the whole transaction in that same was a part of appellant’s flight with the stolen goods in his possession, as was evidenced by the high rate of speed and recklessness with which he left the Goen’s place and eventually turned his car over in a blind street. The *63 flight itself is admissible; then why not the circumstances just prior thereto? If that which appellant was engaged in doing just immediately before the flight was admissible, then should the further one isolated fact that the trunk lock on the Goen’s car had been tampered with have so greatly injured this 'appellant that such should cause him irremediable damage? I think that if this man had been present at two other places where trunk locks or cars had been tampered with and two tires taken therefrom, and afterwards found in his possession, then as a circumstance to show the identity of the thief of the Massey tire, which was to be proven before the jury, it should have been shown that when found near another car, its trunk lock also tampered with, that appellant, when detected, fled therefrom, would be a strong circumstance showing who had tampered with two other locks in the same town and at about the same time. Thus believing, I do not agree with the majority opinion that reverses this case because it was shown that the Goen’s car trunk lock had been tampered with. on state’s motion for rehearing. BEAUCHAMP, Judge. The State, through the County Attorney of Denton County, has filed a motion for rehearing in this cause which has been carefully considered, but it is the opinion of the writer that much of the discussion is foreign to the real issue upon which the case was reversed. The record can not be corrected by filing additional papers in this court. We must look to the copy of all proceedings as contained in the transcript; and the State had the privilege of seeing that it correctly transferred to this court the record of the proceedings which took place below. Neither are we in position to take the advice of counsel to not reverse cases unless it positively appears that the testimony wrongfully admitted resulted in injury. There are cases in which the appellant is entitled to the benefit of the doubt on questions of law as well as of fact and it is the duty of this court to so hold in an appropriate case. If there was a written charge in the case and if that charge was sufficient to remove the error for which the case was reversed then it should have been contained within the original transcript. We cannot grant permission to file affidavits to that effect at this time. The motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4900872. Public record. Not legal advice.