Mathews v. State

47 S.W. 647, 39 Tex. Crim. 553, 1898 Tex. Crim. App. LEXIS 176

• Court: Court of Criminal Appeals of Texas
• Decided: November 2, 1898
• Docket: No. 1897.
• Status: Published

Opinions

HENDERSON, Judge.

Appellant was convicted of the theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of three years; hence this appeal.

Appellant made no motion to quash the indictment. In the motion for a new trial, however, as one of the grounds of his motion he sa}rs that the indictment fails to charge any offense- against the laws of the State of Texas, and fails to allege theft of any specific property from any person. Appellant assigns as error the action of the court in failing to arrest the judgment, and the specific ground pointed out is that in the charging part of the indictment the word “on,” and not “one,” is used between the words “Bradbury” and “cattle,” so that the indictment reads that the defendant “did unlawfully and fraudulently take from the possession of M. A. Bradbury on cattle, the same being the corporeal personal property of the said M. A. Bradbury,” etc. He insists that the use of the word “on” is not idem sonans with “one,” nor equivalent to or substantially the same word, and that, therefore, the indictment is meaningless. We can not tell therefrom how many cattle, and the expression “on cattle” does not describe any property. It has been repeatedly held by this court that it is not competent to supply a material word in the indictment. See Scroggins v. State, 36 Texas Crim. Rep., 117. And it has been held that where a word is used in the indictment that is not idem sonans with the proper word, does not mean the same thing, or has no meaning, and is a material word, the indictment in such case can not be held good. Evans v. State, 34 Texas Crim. Rep., 110. But it has been held that, where an indictment will be complete by the rejection of a word or a phrase, the "same may be rejected as surplusage, and the indictment sustained. Williams v. State, 35 Texas Crim. Rep., 391. Now, if we hold that the word “on” can not be pronounced as “one,” as was evidently intended by the pleader, yet we may reject the same as surplusage, and the indictment will be good. Then it would read, defendant did then and there “unlawfully and fraudulently take from the possession of M. A. Bradbury cattle,” etc. “Cattle,” according to the Century Dictionary, is a noun, and may be either singular or plural; so that the use of the term “cattle” may mean one cattle. It is true that “cattle” means “live stock ; domestic quadrupeds which serve for tillage or other labor, or as food for man,”—and so includes a number of different kinds of live stock. The term “neat cattle” more appropriately describes kine, or animals of the bovine species; yet in common usage, in our country, “cattle” has come to mean more particularly animals of the bovine species. We accordingly hold that the indictment was good as against a motion in arrest of judgment. We would not be understood by anjr means as commending the negligence of the county attorney, yet it is not such as will authorize the quashal of the indictment.

Appellant complains because the court failed to give a charge on cir cumstantial evidence; insisting that this is a case of purely circumstantial evidence, and that consequently the court erred in not giving such a charge. It has been repeatedly held by this court that, where the evidence shows a confession by defendant, the case is no longer one of circumstantial evidence. The evidence shows that appellant, if the State’s witness Jim Keys is to be believed, confessed to him the theft of the head of cattle.

Appellant also claims that the court committed an error in not instructing the jury that they could not convict the defendant on a confession alone, without other proof of the corpus delicti. If the corpus delicti depended alone on confessions, it would have been proper for the court to have instructed the jury to return a verdict for the defendant. But, in view of the fact that the corpus delicti did not depend alone on -confessions, it was not proper for the court to give such a charge. The court might have given a charge to the effect that the jury could look to the other facts and circumstances in the case, with the confessions of the defendant, in order to determine whether or not the corpus delicti had been proven. See Kugadt v. State, 38 Texas Crim. Rep., 681. Aside from the confession of the defendant, M. A. Bradbury testified to the loss of the yearling under circumstances which strongly tended to show that it was stolen. Other witnesses circumstantially tend to connect defendant with the theft of that yearling. This testimony, in connection with the confessions, left no reasonable doubt of the theft of the yearling, and that defendant was the taker. There being no errors in the record, the judgment is affirmed.

Affirmed.

Hurt, Presiding Judge, absent.