Chance v. State

141 S.W. 113, 63 Tex. Crim. 602, 1911 Tex. Crim. App. LEXIS 488

• Court: Court of Criminal Appeals of Texas
• Decided: November 15, 1911
• Docket: No. 1373.
• Status: Published

Opinions

HARPER, Judge.

Appellant was indicted, charged with the theft of cattle, and when tried, he was convicted, and sentenced to two years in the penitentiary.

Appellant’s counsel has filed an able brief in this court, and in the brief complains that “the' court erred in failing to charge on circumstantial evidence and that the court erred in failing to charge on recent possession of stolen property and reasonable explanation at the time.” By reference to the motion for a new trial, we find no such errors assigned in the motion for a new trial. Appellant cites us to a number of cases, among them, Taylor v. The State, 27 Texas Crim. App., 463, holding that if the evidence is such as to call for a charge on these theories, it is error for the court to fail to so charge the jury. Without detailing the evidence, and discussing whether such charges were called for by the evidence, since the court rendered the opinion in the Taylor case and other cases cited by appellant, the Legislature in its wisdom, in 1897, provided by statute that “whenever it appears by the record in any criminal action, upon appeal by defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed unless the error appearing from the record was excepted to at the time of the trial or in the motion for a new trial.” The matters above complained about were neither excepted to at the trial, nor in the motion for a new trial, and this court is precluded by this statute from considering such matters on appeal. As to the wisdom of this law it is not for us to discuss, but we must follow it as written by the Legislature. See the case of Ryan v. State, decided today, and authorities there cited.

There was no error in permitting the State to ask defendant if he had been indicted in other cases of theft by the grand juries of Hardin and Jefferson Counties, and in requiring him to answer. This evidence was admissible for the purpose of affecting his credibility as a witness, and the court properly limited it in his charge.

It appears that subsequent to the time defendant is alleged to have stolen the animal, he exhibited to the district attorney a bill of sale to the animal in question, which purported to be from Joe McCluslcey to one Fabriquez, and from whom he claimed to have purchased the animal. There was no error in permitting the State to show that McCluslcey had never executed such bill of sale, and to introduce evidence tending to show that defendant and one Robert Webb, had written the bill of sale in question, and at the time of its execution, remarked that “it (the bill of sale) would clear defendant and put McCluslcey in the penitentiary.” This all would have a bearing on his claim of purchase in good faith from Fabriquez.

Mr. Jack Townsend had testified that he saw the animal alleged to have been stolen in the lot of defendant, when among other things, the following proceedings were had: “Q. I will ask you to state whether or not you informed him about this particular beef—did you inform him or not? Defendant: I object to that testimony unless they show the defendant was present. State: I want to show at this particular time he showed Mr. Owens that he informed him about this brindle beef in Sam Chance’s pen. Court: What is the purpose? State: The purpose is to show Mr. Owens that he knew where this beef was on the day before that. Court: It is hearsay. State: I understand. You do not catch the intent; why, I want to introduce the proof. All I "want to know is the day in which Mr. Owens—in other words, the very time this beef was seen in the pen; it was seen there that day. Court: You want to identify the time. State: Yes, sir. Court: Go ahead. Defendant: We object to that as being hearsay, the defendant was not shown to be present. Court: Of course, lie has got to follow it up, it is simply upon the question of identification of time. State: That is the only reason I offer it. Defendant excepts to the ruling of the court.”

A bill of exceptions must be complete in itself, and this court does' not look to other parts of the record in order to determine whether testimony is admissible, from this hill, we can not tell whether the State’s attorney followed the matter up or not, and if he did do so, if the testimony of Mr. Owens was such as to authorize this statement to he introduced for the purpose of fixing the time, certainly after the witness, Townsend, had testified lie recognized the animal in defendant’s lot as the animal of the prosecuting witness, to permit him to state that he had told another about seeing the animal, would add no force to his testimony, and would not lie reversible error; in addition thereto, as stated by the court, under certain emergencies, the testimony might be admissible for the purpose stated, and as this is not negatived in the bill of exceptions, it is incomplete and can not be considered. In the case of Bailey v. State, 50 Texas Crim. Rep., 398, this court held: “There are no separate hills of exception to the introduction of testimony. However, there are some exceptions taken in connection with the statement of facts. As usual, with this character of exceptions, it is difficult to determine whether they are taken in such manner as to require a review. . . . We again repeat, what we have heretofore said, that we will not wander through the entire record to find appellant’s hills of exception.” See also Jones v. State, 51 Texas Crim. Rep., 507.

In another bill, the following proceedings are complained of: State’s counsel asked the witness Owens: “Q. I will ask you, Mr. Owens, if you ever was informed by anyone about this beef being penned in Sam Chance’s pen? A. Yes, sir, I was. Defendant: We object to that as being wholly immaterial and hearsay, leading and suggestive. Court: What is the purpose of flmi ? Slate: I want to follow it up and show it was Jack Townsend told him. Court: I understand. Is it for the purpose of identifying the time Jack Townsend saw it? State: Yes, sir. Court: You can show it, hut otherwise it is not admissible. You can show the time that Jack Townsend saw it. Defendant excepts to the ruling of the court.”

This hill does not show that the witness testified that Jack Townsend told him anything, nor if he did do so, what it was he told him. We are not permitted to look to other parts of the record to see what, if anything, the witness testified. The bill being in this condition, nothing is presented for us to review.

There was no error in failing to give the special charges requested by defendant. The court charged the jury: “You arc further charged that the fraudulent intent in the taking of the property is the very gist of the crime of theft, and without such intent exists in the mind of the person taking at the very time of the original taking of the property, there can he no Iheft, no matter if such intent was afterward conceived. And you are further charged that if you are satisfied from the evidence, beyond a reasonable doubt, that the head, of cattle in question, that is, the red brindled steer, branded B, the hide of which was found in defendant’s possession, was the property of the said Bill Parker, 3’et if 3*011 find and believe from the evidence that the defendant bought the head of cattle in question, that is, the red brindled steer, branded ‘Bf from a man who gave his name as Jack Fabriquez or Fabricus, then you will acquit the defendant, or if you entertain a reasonable doubt as to whether or not the defendant bought the head of cattle in question, that is, the red brindled steer, branded B, from a man.giving his name as Jack Fabriquez or Fabricus, you will solve the doubt in favor of defendant and acquit him.”

This covered all that was in the special charges requested it was proper for the court to give in charge. As before stated, the evidence in regard to the hill of sale was admissible. To have charged thereon would have been upon the weight to be given the testimony.

Affirmed.