LATTIMORE, Judge.
Appellant was convicted in the District Court of Edwards County, of the theft of about 150 sheep, the property of one F. M. Faulkner, and his punishment fixed at two years confinement in the penitentiary. Only so much of the facts become material as may be necessary to make clear the issues herein presented. The statement of facts is quite lengthy, much of the evidence being impeaching in character.
Appellant’s first contention is that the change of venue from Sutton
to
Edwards County, was made under such circumstances as that the latter county acquired no jurisdiction. As stated in his bill of exceptions, it appears that the District Court convened in Edwards
County on August 25, 1919, and on that date, and after court was convened, the judge thereof, whose district included Sutton County, recessed, or adjourned said court in Edwards County, and went to Sutton County, and there convened court, for the purpose of making an order changing the venue of this case from Sutton County to Edwards County, and that said judge did in fact convene a special term of the District Court in Sutton County, in the late afternoon and night of August 25, 1919, and then made an order changing the venue of this case to Edwards County, requiring appellant to enter into recognizance to appear the following day in the latter co.unty, which recognizance was given.
It further appears that on August 26, 1919, appellant, in the District Court of Edwards County, filed his application, duly sworn to, for process
instanter
for a large number of witnesses in this case. The pith of appellant’s contention seems to be that the judge of the trial court could not legally preside over the courts of two counties in his district at the same time. It is provided by Article 93, of Vernon’s C. C. P. that special terms of the ¿District Courts may be called whenever it may become advisable. There being no question but that the district judge in the instant case deemed it advisable, and that he did call a special term of the district court in Sutton County, at which orders were duly made and entered on the minutes, we can see no reason, if it be admitted that it became advisable to hold said special term in one county during the session of court in another county in the district, why recess or adjournment may not be temporarily had in the latter, to allow the transaction of business which makes advisable the special term in the former county. The judge of the court is not absent while any trial is in progress ,and we know of no rule or statute which is violated by such procedure. The Elliott case, 125 5. W. Rep., 568, seems in point. It appears in that case, that while the court was in session in Anderson County, the judge went to Houston County, another county in his district, and there convened court, and organized a grand jury, which proceeded to function. He then returned to Anderson County, where he was holding court. This Court upheld the action of the trial court in such procedure, and refused to hold invalid an indictment returned by the grand jury empaneled and authorized to act at said special term.
It next appears that after the jury were empanelled, and some evidence introduced, appellant filed another plea to the jurisdiction of the court, based on the fact that he and E. L. Kiser were jointly charged in the indictment with theft, and that the case against Kiser had not been dismissed, nor had he been arrested under the indictment, nor required to enter into a recognizance, nor appeared and asked for any severance and that Kiser was not named in the order changing the venue. This plea of the appellant was overruled. The-action of the trial court must be upheld. Error in the change of venue, if any, must be taken by exception in the court from which
the change is made, and cannot avail in a plea to the jurisdiction of the court to which such venue is changed. Bowden v. State, 32 Texas Crim. App., 246; Ex parte Cox, 12 Texas Crim. App., 655. Change of venue as to one jointly indicted, changes the venue as to all. Cox v. State, 8 Texas Crim. App., 664. Nor do we think it a matter which in any event could avail appellant.
Complaint is made of the refusal to continue this case, upon the application of appellant. We find in the record no bill of exceptions to the court’s' refusal to grant this continuance, and such bill of exceptions is always held to be necessary; and a recital of exception taken in the order overruling such motion will not take the place of a bill of exceptions. Branch’s Ann. P. C., Sec. 304; Vernon’s C. C. P., pp. 529-530, and authorities cited.
In his bill of exceptions No. 3, appellant objects to the following question, asked by the State of its witness Eck Kiser: “Q. When you rounded up the livestock on that ranch for the purpose of delivering it to Ed Fowler, did you find any livestock there that did not belong to Henry Wilson ?’k The witness answered. “Yes, sir.” Appellant then objected to said answer, and asked that it be excluded, for the reason that the testimony should be confined to the bunch of sheep alleged to have been stolen in this indictment. The bill shows further, that over the same objection, the witness stated that he found some of Faulkner’s sheep; that same were kept there two or three days, and that he, witness, moved them to old man Wilson’s ranch.
Under all the rules, a bill of exceptions must so present the matter complained of as that we may be able to ascertain from the contents of the bill that error has been committed.
Turning our attention to the question first stated, it is apparent that we are unable to gather therefrom what ranch was referred to in said answer nor is said fact made to appear anywhere in said bill; nor does anything appear in said bill that would indicate that appellant had anything to do with the sheep which were found by witness on some ranch; nor is any one connected with said sheep by the recitals 'of said bill, save and except the witness himself. The bill further states that after the various answers were made, the court asked appellant’s counsel if he still objected, and receiving an affirmative answer, the court instructed the jury not to consider the evidence. As presented, this bill is not sufficient to predicate error upon. If, however, it should be deemed sufficient to call for consideration, we would not feel that error was shown. In this case, appellant seems to depend upon an honest claim of right to the alleged stolen sheep, or at most, a mistake of fact as to their identity on the part of the alleged owner or himself. When such is the defense, it is allowable to prove other thefts, or the possession of other stolen property at or about the time alleged, as affecting the intent with which the alleged stolen property was taken.
Appellant presents his bill of exceptions No. 5, complaining of the court’s refusal to allow the witness Faulkner to answer the following question: “Now, have you heretofore testified that you only
bought
four or five marks from Dabney, and did not buy any more from anybody else.” Said bill states that the trial court at this juncture, said: “You have already .gone into that,” and refused to let the witness answer.
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LATTIMORE, Judge.
Appellant was convicted in the District Court of Edwards County, of the theft of about 150 sheep, the property of one F. M. Faulkner, and his punishment fixed at two years confinement in the penitentiary. Only so much of the facts become material as may be necessary to make clear the issues herein presented. The statement of facts is quite lengthy, much of the evidence being impeaching in character.
Appellant’s first contention is that the change of venue from Sutton
to
Edwards County, was made under such circumstances as that the latter county acquired no jurisdiction. As stated in his bill of exceptions, it appears that the District Court convened in Edwards
County on August 25, 1919, and on that date, and after court was convened, the judge thereof, whose district included Sutton County, recessed, or adjourned said court in Edwards County, and went to Sutton County, and there convened court, for the purpose of making an order changing the venue of this case from Sutton County to Edwards County, and that said judge did in fact convene a special term of the District Court in Sutton County, in the late afternoon and night of August 25, 1919, and then made an order changing the venue of this case to Edwards County, requiring appellant to enter into recognizance to appear the following day in the latter co.unty, which recognizance was given.
It further appears that on August 26, 1919, appellant, in the District Court of Edwards County, filed his application, duly sworn to, for process
instanter
for a large number of witnesses in this case. The pith of appellant’s contention seems to be that the judge of the trial court could not legally preside over the courts of two counties in his district at the same time. It is provided by Article 93, of Vernon’s C. C. P. that special terms of the ¿District Courts may be called whenever it may become advisable. There being no question but that the district judge in the instant case deemed it advisable, and that he did call a special term of the district court in Sutton County, at which orders were duly made and entered on the minutes, we can see no reason, if it be admitted that it became advisable to hold said special term in one county during the session of court in another county in the district, why recess or adjournment may not be temporarily had in the latter, to allow the transaction of business which makes advisable the special term in the former county. The judge of the court is not absent while any trial is in progress ,and we know of no rule or statute which is violated by such procedure. The Elliott case, 125 5. W. Rep., 568, seems in point. It appears in that case, that while the court was in session in Anderson County, the judge went to Houston County, another county in his district, and there convened court, and organized a grand jury, which proceeded to function. He then returned to Anderson County, where he was holding court. This Court upheld the action of the trial court in such procedure, and refused to hold invalid an indictment returned by the grand jury empaneled and authorized to act at said special term.
It next appears that after the jury were empanelled, and some evidence introduced, appellant filed another plea to the jurisdiction of the court, based on the fact that he and E. L. Kiser were jointly charged in the indictment with theft, and that the case against Kiser had not been dismissed, nor had he been arrested under the indictment, nor required to enter into a recognizance, nor appeared and asked for any severance and that Kiser was not named in the order changing the venue. This plea of the appellant was overruled. The-action of the trial court must be upheld. Error in the change of venue, if any, must be taken by exception in the court from which
the change is made, and cannot avail in a plea to the jurisdiction of the court to which such venue is changed. Bowden v. State, 32 Texas Crim. App., 246; Ex parte Cox, 12 Texas Crim. App., 655. Change of venue as to one jointly indicted, changes the venue as to all. Cox v. State, 8 Texas Crim. App., 664. Nor do we think it a matter which in any event could avail appellant.
Complaint is made of the refusal to continue this case, upon the application of appellant. We find in the record no bill of exceptions to the court’s' refusal to grant this continuance, and such bill of exceptions is always held to be necessary; and a recital of exception taken in the order overruling such motion will not take the place of a bill of exceptions. Branch’s Ann. P. C., Sec. 304; Vernon’s C. C. P., pp. 529-530, and authorities cited.
In his bill of exceptions No. 3, appellant objects to the following question, asked by the State of its witness Eck Kiser: “Q. When you rounded up the livestock on that ranch for the purpose of delivering it to Ed Fowler, did you find any livestock there that did not belong to Henry Wilson ?’k The witness answered. “Yes, sir.” Appellant then objected to said answer, and asked that it be excluded, for the reason that the testimony should be confined to the bunch of sheep alleged to have been stolen in this indictment. The bill shows further, that over the same objection, the witness stated that he found some of Faulkner’s sheep; that same were kept there two or three days, and that he, witness, moved them to old man Wilson’s ranch.
Under all the rules, a bill of exceptions must so present the matter complained of as that we may be able to ascertain from the contents of the bill that error has been committed.
Turning our attention to the question first stated, it is apparent that we are unable to gather therefrom what ranch was referred to in said answer nor is said fact made to appear anywhere in said bill; nor does anything appear in said bill that would indicate that appellant had anything to do with the sheep which were found by witness on some ranch; nor is any one connected with said sheep by the recitals 'of said bill, save and except the witness himself. The bill further states that after the various answers were made, the court asked appellant’s counsel if he still objected, and receiving an affirmative answer, the court instructed the jury not to consider the evidence. As presented, this bill is not sufficient to predicate error upon. If, however, it should be deemed sufficient to call for consideration, we would not feel that error was shown. In this case, appellant seems to depend upon an honest claim of right to the alleged stolen sheep, or at most, a mistake of fact as to their identity on the part of the alleged owner or himself. When such is the defense, it is allowable to prove other thefts, or the possession of other stolen property at or about the time alleged, as affecting the intent with which the alleged stolen property was taken.
Appellant presents his bill of exceptions No. 5, complaining of the court’s refusal to allow the witness Faulkner to answer the following question: “Now, have you heretofore testified that you only
bought
four or five marks from Dabney, and did not buy any more from anybody else.” Said bill states that the trial court at this juncture, said: “You have already .gone into that,” and refused to let the witness answer. The bill proceeds to set out that appellant had not gone into that, and appellant expected to show, if the witness had been permitted to answer, that upon a previous trial, involving the facts of this case, said witness had sworn that he only bought four or five marks from Dabney, and none from anyone else; and further expected to show that he took and claimed from the defendant ten or eleven different marks, of sheep, after having sworn that he did not own more than four or five. This bill is neither approved nor refused by the trial court, but in view of appellant’s affidavits filed in support of the same, we will treat it as if the same had been refused. The question set out in said bill as being asked, called for an answer ón the part of the witness, of
ye»
or
no,
and the refusal of the court to permit such answer, is the only matter legitimately presented here for our determination. If counsel had other evidence which he desired to introduce, affecting the credibility of the witness Faulkner in this matter, he cannot avoid the necessity of offering such evidence, and saving his timely bill of exceptions to its refusal, by a recital in this bill that he expected to offer such other testimony. Nor is it stated in this bill what the expected answer would have been: nor how the testimony, which he says he expected to introduce later, would be dependent upon an affirmative or negative answer. Such bill presents no error which we can determine. It is apparent that if the bill had stated that the witness would have answered “no,” a different conclusion as to error would necessarily follow, than if it was stated that the witness would have answered “yes.”
Bill of exceptions No. 6 shows that after a question was asked, and answered without objection or claim that here was any misunderstanding, or reason for not objecting before the answer, the court refused appellant’s request to withdraw said answer. It has often been held in "cases of this character, that this action of the court is correct.
By his bill No. 7, appellant complains that the trial court refused to allow the witness Childress, for the defense, to cut out of some paper, in the presence of the jury, an underbit, with the iron stamp used by witness Bond in marking the ears of the alleged stolen sheep, the stated design of such testimony being to exhibit such piece of paper before the jury, in order to show that the ear marks of the alleged stolen sheep as traced and put before said jury, did not correspond with that made by said iron stamp. This bill is qualified by the trial court so as to make it appear that each counsel for appellant.
in his argument, was allowed to use said.iron stamp before the jury, and to cut underbits in paper, and to make such comparison, and, also, that the jury were permitted to take with them in their retirement, said stamp, and tracings. As qualified, we are of opinion that no injury resulted to appellant.
By his bill of exceptions No. 8, complaint is presented of the fact that Tom Wilson, brother of appellant, who had testified that he bought sheep marked as the State claimed were the alleged stolen sheep, which sheep he sold to appellant, was asked on cross-examination, by the State, if he was present at the trial of his father in Sutton County, upon a charge of receiving and concealing these alleged stolen sheep, and over objection, said witness was required and permitted to answer that he was present, and to further state that he did not testify upon that trial. It further appears that the trial court, being in. some doubt as to the admissibility of this testimony, instructed the jury not to consider it. We think no error is shown.
It is argued at length, and forcibly, that the evidence does not warrant the verdict. We cannot agree with this contention. The owner testified positively to the loss of. his sheep, and the accomplice, Kiser, testified positively that he and appellant took said sheep from the owner’s pasture, and drove them through the country out into appellant’s pasture. Kiser’s story is corroborated by Jim Chadwick, who saw Kiser and appellant driving the sheep to the Wilson pasture; also by Claude Keene, who saw appellant and Kiser about ten o’clock at night driving said sheep to his, appellant’s, pasture; also, by W. B. Adams, who saw said parties driving said sheep; also, by Thomas Bond and his son, who identified by flesh-marks certain sheep found in appellant’s pasture, as being sheep which they had sold to Dabney and he to Faulkner, the alleged owner. The evidence is sufficiently strong, in our opinion, to necessitate upholding the verdict of the jury, irrespective of the testimony as to the marks, etc.
It is claimed that there was misconduct of the jury, in that there was comment after they had retired, on the failure of appellant to testify. The evidence bearing on this issue was heard by the trial court, and he approved the bill of exceptions, stating by way of qualification that the only reference to the matter was as follows: That a juror named Johnson, who was in favor of acquittal, and the last to agree to a verdict of guilty, when arguing in the jury room in behalf of appellant said, “If Henry Wilson had testified and had claimed to have purchased the sheep from Kiser, we would have as much right to believe him as we did to believe Kiser. ’ ’ To which remark none of the jurors paid any attention, excepting that a man named Foley replied, “Yes, if he had had any witnesses to back him up.”
We think the trial court warranted in his further statement qualifying this bill, that he was of opinion that the juror Johnson did not intend his remark as any suggestion of guilt because of any
failure on the part of appellant to testify, nor did any of the other jurors so understand it. Our statute, Article 790, Vernon’s C. C. P., provides that the appellant may testify in his own behalf, and that his failure to so testify must not be taken as a circumstance against him, nor shall same be alluded to by counsel in the cause. There have been many cases decided by this Court, where the matter of such failure was referred to in the jury room, but in such way as to manifestly be not against the accused, and in such eases this Court has declined to reverse. Veach v. State, 71 Texas Crim. Rep., 181, 159 S. W. Rep., 1069; Probest v. State, 60 Texas Crim. Rep., 608, 133 S. W. Rep., 263; Powers v. State, 69 Texas Crim. Rep., 494, 154 S. W. Rep., 1020; Rhodes v. State, 69 Texas Crim. Rep., 45, 153 S. W. Rep., 128; Cooper v. State, 72 Texas Crim. Rep., 566, 162 S. W. Rep., 364.
Some complaint is made of a discussion among the jurors as to the argument of the attorneys, and some one in the jury room asked “Where was Mr. Speed?” It appears that a man named Speed had been mentioned in the testimony óf Mr. Faulkner and referred to in the argument. We have examined this closely, and find nothing erroneous in the discussion among the jurors, as the same appears in the record.
We have given this case our careful scrutiny, aided by an able and exhaustive brief filed on behalf of the appellant, but find no reversible error in the record.
The judgment will be affirmed.
Affirmed