Byrd v. State , 90 Tex. Crim. 418 ( 1921 )

Appellant urges that Gibson, cashier of the Vernon bank which originally paid the money by mistake, was a resident of Wilbarger County; that Allensworth, cashier of the Chillicothe bank from which appellant received the money in question, was in Hardeman County, and that it was erroneous to submit to the jury the question of appellant's guilt predicated on a taking from Gibson, appellant being prosecuted in Hardeman County.

There seems no good ground for such contention. But one offense was committed by appellant, which was charged in four counts in the indictment, among which no election was had. A general charge to the jury was given and a general verdict rendered by them. In such case we have always held that the verdict must be referred to any count which is sustained by the evidence. That legal possession of the alleged stolen money was in Allensworth, cashier of the Chillicothe bank in Hardeman County, at the time manual possession thereof was obtained by appellant, seems obvious. One court of said indictment charged ownership and possession in Allensworth. The submission of the issue of guilt predicated on a taking from Gibson, could not, therefore, have harmed appellant when the evidence fully sustained a verdict of guilt predicated on a taking from Allensworth. The matter might be further discussed under the rule of law making the venue of a prosecution for theft lie in the county where the property was originally taken, or in any county into which the same was carried, in which character of case the alleged owner might live in a county distant from that of the prosecution, but we deem such discussion needless.

During their deliberations the jury came into court and asked for the reproduction of certain testimony. The court stenographer read from the evidence of the witness indicated until stopped by the jury's statement that that was all they wanted. Appellant's counsel asked that all the evidence on that point be read. The court stated that he doubted what that point was and asked counsel to state it, which he failed to do. The court then asked the jury if they desired more evidence read, which they answered in the negative, and they were thereupon retired. No error is shown by this. The right of recall of a witness is limited by the request of the jury. The bill of exceptions complaining of this matter, as qualified by the trial court, shows that when the request for this evidence was made the jury stated what they wanted. The presumption of this court, in the absence of an affirmative showing to the contrary, would be that when the jury stopped the witness, they had what they asked for and wanted. Wilson v. State, 37 Tex.Crim. Rep.; Art. 755, Vernon's C.C.P.

The question as to the intent to appropriate at the time of acquisition, was fully submitted to the jury whose duty it was to solve this proposition, and they were told that if they had a reasonable doubt of the fact that appellant had the design to appropriate such property at the time same came into his possession, they should acquit. We are not prepared to say that there is not evidence in the record to justify their finding against appellant. The facts tended most cogently to show both such intent at that time and continuously thereafter. We find nothing in the record to indicate the voluntary return of such money by appellant even up to the time of the trial, which took place some ten months after the alleged taking. The money in question was withdrawn from the Chillicothe bank by several large checks. There is nothing in the Mitchell case, 78 Tex. Crim. 79, 180 S.W. Rep., 115, which makes it analogous to the instant case, and nothing which would call for the granting of this rehearing.

Finding no error in the original opinion, the appellant's motion for rehearing will be overruled.

Overruled.