Hurt, Judge.
This was a conviction for the theft of a steer, under an indictment containing two counts. The first charges that the animal was an estray and that the owner was unknown; the second, that it was the property of A. Stayton. The first count is conceded to be good, but it is urged that no conviction can be had upon it for the reason that the proof shows that the name of the owner was known to the grand jury, and hence there is a variance between the allegations and the proof under it. From this well taken position the appellant proceeds to argue that a conviction must be had, if at all, upon the second count alone. This position, we think, is also correct. This .being so, the trial judge should have confined his charge to the second count, treating the case in his charge as though it were the only count in the indictment, (that count alleging the ownership to be in A. Stayton). (Jorasco v. The State, 6 Texas Ct. App., 238.)
It is further contended that, since no legal conviction can be had under the first count, if the second count is in itself defective the conviction is wrong, because wanting in proper allegations. This is correct reasoning; and the question for this court to consider is that arising upon the sufficiency of the second count.
One ground of objection is that the Eugene Boren named in the first count is not alleged in the second count to be the identical Eugene Boren named in the first, contending that the descriptive words “the said” should precede the name Eugene Boren in the second count. The same objection is urged to the description of the steer in the second count. In short, that it is not made to appear from the allegations in the second count, that the accused and the property alleged to have been stolen in the first count, are identically the same as in the second count. Eugene Boren is the name of the accused" in the first and second counts. A steer is the property alleged to have been stolen in both counts. By presumption they are the same; but let us refer to the principles governing counts:
“The word ‘count’ is used when, in one finding by the grand jury, the essential parts of two or more separate indictments, for causes apparently distinct, are combined, the allegations for each being termed a count, and the whole an indictment. And an indictment in several counts, therefore, is a collection of sep[34]*34arate bills against the same defendant, for offenses which on their faces appear distinct, under one caption, and found and endorsed collectively as true by the grand jury. The object is what it appears to be, namely, in fact to charge the defendant with distinct offenses, under the idea that the court may, as often as it will, allow them to be tried together, thus averting from both parties the burden of two or more trials; or, in another class of cases, to vary what is meant to be the one accusation, so as, at the trial, to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs, or a legal doubt as to what form of charge the court will approve.” (1 Bish. Crim. Proc. 421, 422.)
And, “on the face of the indictment, therefore, ‘every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of joinder of offenses that the joinder of counts is admitted.’ ” (Id., 426.)
If, therefore, each count is to be considered as charging a distinct offense, we must look to its allegations to determine its sufficiency, just as though it was the only count in the indictment; and when thus tested and found sufficient we need look no farther. But if not sufficient upon its face, we may then look to the preceding count, or counts, for auxiliary allegations to supply its defects.
It is objected to the second count that it does not, and should have alleged, that “the said Eugene Boren did,” etc.; thus showing the accused in both counts to be the same person. This is unnecessary, because, upon its face, the second count is sufficient as regards the accused and also the steer. The illustration given by appellant in his brief is not .in point. “The first count charged an assault on Esther Richards, an infant above the age of ten and under the age of twelve years; and the second count charged, in a different form, an attempt to have carnal knowledge of ‘the said Esther Richards.’ This reference was held not to carry with it the allegation that she was “an infant above the age of ten and under the age of twelve years.’ ” By reference to the case from which the illustration is drawn, it will be found that it was essential to constitute the offense that the female be alleged and found to be over the age of ten and under the age of twelve years. (State v. Lyon, 17 Wis., 245; Regina v. Martin, 9 C. & P., 225; 38 Eng. C. L., 87; State v. McAllister, 26 Maine, 374.)
In the case under our consideration the age and description [35]*35of the accused, as well as the description of the steer, are wholly immaterial. We have not found, nor do we think a case can be found, in which it is held that it is required that the second count should state, except by using the same name, that the accused in both counts is the same person. If, however, the description of tire person, such as age or condition, is material to the description of the offense, the second count must contain all the elements of the offense, and to repeat the name of the person merely will not be sufficient.
It is further objected to the indictment that “the pounts contain repugnant matters, and that, therefore, the verdict of guilty should be taken only on such one or more as are not mutually repugnant.” There being but two.counts, if they contain repugnant matters, the verdict of guilty could be referred to neither, because the first is as repugnant to the second as the second to the first, hence the verdict would be found on inconsistent allegations. “Repugnancy, in general, consists of two inconsistent allegations in one pleading. And, since both can not be true, and there is no means of ascertaining which is meant, the whole must be as though neither existed, leaving the whole pleading— the indictment, for example—inadequate. This doctrine applies to counts only, that is to say, no count should contain repugnant matters, but it does not, in the very nature of things, apply to the repugnancy which of necessity must exist in different counts.” (Bish. Crim. Proc., secs. 489, 490, 499.)
We are cited to what Mr. Bishop says in section 492, viz.: “ The doctrine of this chapter, as to the indictment, forbids any repugnancy in a count : counts may be joined containing matter repugnant the one to the other. But even then, if they are for one offense, the verdict of guilty by the jury should be taken only on such one or more as are not mutually repugnant.” In support of the doctrine laid down in this last clause, Mr. Bishop refers to Commonwealth v. Fitchburg Railway Company, 120 Massachusetts, 372. Consulting this case, it will be found that there were five counts in the indictment, charging the same offense as committed by different means or modes* The jury returned a verdict of guilty upon three counts. It was held that, as but one offense was charged, the jury should have been instructed to return a general verdict of guilty, or not guilty, upon the whole indictment, as for a single offense; or to return a verdict of guilty upon the count proved, if either was proved, and not guilty as to all the other counts. In this [36]
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Hurt, Judge.
This was a conviction for the theft of a steer, under an indictment containing two counts. The first charges that the animal was an estray and that the owner was unknown; the second, that it was the property of A. Stayton. The first count is conceded to be good, but it is urged that no conviction can be had upon it for the reason that the proof shows that the name of the owner was known to the grand jury, and hence there is a variance between the allegations and the proof under it. From this well taken position the appellant proceeds to argue that a conviction must be had, if at all, upon the second count alone. This position, we think, is also correct. This .being so, the trial judge should have confined his charge to the second count, treating the case in his charge as though it were the only count in the indictment, (that count alleging the ownership to be in A. Stayton). (Jorasco v. The State, 6 Texas Ct. App., 238.)
It is further contended that, since no legal conviction can be had under the first count, if the second count is in itself defective the conviction is wrong, because wanting in proper allegations. This is correct reasoning; and the question for this court to consider is that arising upon the sufficiency of the second count.
One ground of objection is that the Eugene Boren named in the first count is not alleged in the second count to be the identical Eugene Boren named in the first, contending that the descriptive words “the said” should precede the name Eugene Boren in the second count. The same objection is urged to the description of the steer in the second count. In short, that it is not made to appear from the allegations in the second count, that the accused and the property alleged to have been stolen in the first count, are identically the same as in the second count. Eugene Boren is the name of the accused" in the first and second counts. A steer is the property alleged to have been stolen in both counts. By presumption they are the same; but let us refer to the principles governing counts:
“The word ‘count’ is used when, in one finding by the grand jury, the essential parts of two or more separate indictments, for causes apparently distinct, are combined, the allegations for each being termed a count, and the whole an indictment. And an indictment in several counts, therefore, is a collection of sep[34]*34arate bills against the same defendant, for offenses which on their faces appear distinct, under one caption, and found and endorsed collectively as true by the grand jury. The object is what it appears to be, namely, in fact to charge the defendant with distinct offenses, under the idea that the court may, as often as it will, allow them to be tried together, thus averting from both parties the burden of two or more trials; or, in another class of cases, to vary what is meant to be the one accusation, so as, at the trial, to avoid an acquittal by any unforeseen lack of harmony between allegation and proofs, or a legal doubt as to what form of charge the court will approve.” (1 Bish. Crim. Proc. 421, 422.)
And, “on the face of the indictment, therefore, ‘every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of joinder of offenses that the joinder of counts is admitted.’ ” (Id., 426.)
If, therefore, each count is to be considered as charging a distinct offense, we must look to its allegations to determine its sufficiency, just as though it was the only count in the indictment; and when thus tested and found sufficient we need look no farther. But if not sufficient upon its face, we may then look to the preceding count, or counts, for auxiliary allegations to supply its defects.
It is objected to the second count that it does not, and should have alleged, that “the said Eugene Boren did,” etc.; thus showing the accused in both counts to be the same person. This is unnecessary, because, upon its face, the second count is sufficient as regards the accused and also the steer. The illustration given by appellant in his brief is not .in point. “The first count charged an assault on Esther Richards, an infant above the age of ten and under the age of twelve years; and the second count charged, in a different form, an attempt to have carnal knowledge of ‘the said Esther Richards.’ This reference was held not to carry with it the allegation that she was “an infant above the age of ten and under the age of twelve years.’ ” By reference to the case from which the illustration is drawn, it will be found that it was essential to constitute the offense that the female be alleged and found to be over the age of ten and under the age of twelve years. (State v. Lyon, 17 Wis., 245; Regina v. Martin, 9 C. & P., 225; 38 Eng. C. L., 87; State v. McAllister, 26 Maine, 374.)
In the case under our consideration the age and description [35]*35of the accused, as well as the description of the steer, are wholly immaterial. We have not found, nor do we think a case can be found, in which it is held that it is required that the second count should state, except by using the same name, that the accused in both counts is the same person. If, however, the description of tire person, such as age or condition, is material to the description of the offense, the second count must contain all the elements of the offense, and to repeat the name of the person merely will not be sufficient.
It is further objected to the indictment that “the pounts contain repugnant matters, and that, therefore, the verdict of guilty should be taken only on such one or more as are not mutually repugnant.” There being but two.counts, if they contain repugnant matters, the verdict of guilty could be referred to neither, because the first is as repugnant to the second as the second to the first, hence the verdict would be found on inconsistent allegations. “Repugnancy, in general, consists of two inconsistent allegations in one pleading. And, since both can not be true, and there is no means of ascertaining which is meant, the whole must be as though neither existed, leaving the whole pleading— the indictment, for example—inadequate. This doctrine applies to counts only, that is to say, no count should contain repugnant matters, but it does not, in the very nature of things, apply to the repugnancy which of necessity must exist in different counts.” (Bish. Crim. Proc., secs. 489, 490, 499.)
We are cited to what Mr. Bishop says in section 492, viz.: “ The doctrine of this chapter, as to the indictment, forbids any repugnancy in a count : counts may be joined containing matter repugnant the one to the other. But even then, if they are for one offense, the verdict of guilty by the jury should be taken only on such one or more as are not mutually repugnant.” In support of the doctrine laid down in this last clause, Mr. Bishop refers to Commonwealth v. Fitchburg Railway Company, 120 Massachusetts, 372. Consulting this case, it will be found that there were five counts in the indictment, charging the same offense as committed by different means or modes* The jury returned a verdict of guilty upon three counts. It was held that, as but one offense was charged, the jury should have been instructed to return a general verdict of guilty, or not guilty, upon the whole indictment, as for a single offense; or to return a verdict of guilty upon the count proved, if either was proved, and not guilty as to all the other counts. In this [36]*36case a general verdict was returned upon the whole indictment, thus filling the measure required in the Massachusetts case.
Now, both counts in this case being good, a general verdict is proper; and if one be good and the other bad, a general verdict is also proper, and would be assigned to the good count. However, as bearing upon the point in issue, it was not because of the repugnancy in the different counts in the Massachusetts case that the verdict of the jury was held wrong; but because the defendant was convicted, by the form of the verdict, of three offenses, when he could be legally convicted for but one.
We are of opinion that both counts of the indictment are sufficient, and that the second count is established by proof. Under the rules of law in such cases, the appellant may be convicted under this count, but not the first, for reasons given above, as the record presents the facts to us.
O. H. Hosford, one of the jury trying the case, being examined on his voir dire by the court, answered that he was a freeholder in Ellis county, when in fact he was neither a freeholder in the State nor a householder in said county. This was discovered after the trial, and was made a ground for a new trial. We are of opinion that the new trial should have been granted on this ground. Our statute provides that “ all male persons, over twenty-one years of age, are competent jurors, unless disqualified under some provision in this chapter.”" (Code Crim. Proc., art. 650.) The second ground of disqualification is that the juror is not a freeholder in the State or householder in the county.
It appears from the record that the court tested the qualifications of the juror, under the law, and that the juror qualified himself by answering that he was a freeholder. Appellant and his counsel make oath that his disqualification was not known to them until after the trial. There is no evidence that they, or either of them, did, except that which might be supposed to arise from the fact that they had intimately known the juror, Hosford, for years previously. This is not such proof, if it be proof at all, as will prevail over the oaths of appellant and his counsel, that the disqualification was not known to them until after the trial. (Hanks v. The State, 21 Texas, 526; 41 Texas, 573; 10 Texas Ct. App., 44.)
When it was called to the attention of the appellant that the steer in question was claimed by Stayton, he stated that he got it from one James Gartin, or that he had taken the animal up [37]*37and penned it with others at Ennis, for the purpose of shipping, and that he had taken it believing it to belong to James Gartin. The State proved by Gartin that he had not let Boren have the steer, neither had he authorized him to pen up and ship it. A number of witnesses testified that they heard Gartin give appellant authority to get up and ship the animal; and another witness swore that Gartin, in effect, admitted that he had given such authority.
Opinion delivered February 2, 1887.
Now there"are two theories presented: First—That appellant did not have authority from Gartin to take the animal. Second —That if Gartin did give the authority, still he, defendant, knew that Gartin did not own the steer, and, therefore, that a taking with this knowledge would be theft. This last hypothesis included the further proposition that Gartin was an accomplice, and hence there was a powerful motive inducing him to deny the giving of the authority. Under this phase of the case thus presented, the court should have given the jury an instruction with regard to accomplice testimony. This omission was calculated to injuriously affect the appellant’s rights, all the law demanded by the facts in evidence not being given in charge.
It appears from the record that Gartin’s brand was a long eleven, placed lengthwise on the animal. The brand on the animal in question was a perpendicular eleven, and not so long as the brand used by Gartin. Appellant offered to prove by stockmen that they, by accident, sometimes misplaced their brands on their stock. To this evidence the State objected, and its objection was sustained by the court. We think this was erroneous. The State relied upon the shape and manner in which the brand was placed upon the animal, as strong proof of guilty knowledge. Appellant may have known Gartin’s brand, as well as the manner in which it was usually placed on his stock; and, yet, he may have believed that in this particular case the brand was accidentally placed in an unusual manner. We do not discuss the other questions raised, believing that the matters assigned will not arise on another trial.
For the errors indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.