Wilkirson v. State , 113 Tex. Crim. 591 ( 1929 )

Offense, felony theft; penalty, two years in the penitentiary.

Prosecuting witness, F. R. Lowe, owned a two row cultivator and saw it the last time previous to the theft Christmas Day, 1927. Going to the field in January, 1928, where it had previously stood, he discovered what seemed to be a man's and woman's track. He followed the trail of the cultivator from the field to San Angelo and lost it at the home of appellant's mother. The cultivator was apparently attached to a small car about the size of a Ford. It was found west of San Angelo on a farm owned by appellant's father and where appellant had arranged to make a crop for the year 1928. A man and woman were seen in a Ford car with a two row cultivator trailing on behind traveling from the direction Of Ballinger towards San Angelo at about the date the cultivator is alleged to have been stolen. Appellant's father testified that the cultivator was brought there by appellant and his wife in December, 1927. Appellant admitted his possession of the cultivator but claimed that he bought it from a German in the town of Rowena, paying him $50.00 therefor.

Complaint is made that prosecuting witness, Lowe, was permitted to testify that he knew the difference between a man's track and a woman's track; that he was familiar with the difference in the size of their shoes and the difference between a lady's shoe track and a man's shoe track, and that of the tracks found at the place where the cultivator stood previous to its disappearance, one he took to be a man's track made by about a number seven shoe and the other he took to be a lady's track made by about a number four shoe. It is insisted that this was argumentative, stated the conclusion of the witness and was inadmissible. Such testimony was admissible. Parker v. State, 46 Tex.Crim. Rep.; Boyman v. State, 59 Tex.Crim. Rep.; Williams v. State, 60 Tex.Crim. Rep..

The father of appellant was placed on the stand by the State and in response to questions testified that it was in December, 1927, that his son brought the cultivator to his place, whereupon he was asked if he didn't state before the grand jury that it was sometime in January, to which the appellant objected for the reason that "it is argumentative with the witness." Continuing the District Attorney showed the witness a paper and asked him if that wasn't his signature and if he didn't make that statement before the grand jury, to which an objection was made that (a) the witness had not shown an unwillingness to testify; (b) the defendant cannot be incriminated by the State pressing its own witness; (c) the fact that the witness does not testify like the State's Attorney wants him to, should not be authority for an argument between the witness and the District Attorney.

We confess our inability to understand the point attempted to be made by appellant. The witness was the father of appellant. He was apparently testifying differently from what he had theretofore testified before the grand jury and under the circumstances we think clearly the District Attorney had the right to refresh his memory by showing him the grand jury statement and to ask him about his former testimony. No improper use was made of his statement before the grand jury. Some discretion is allowed the trial court in such matters. Particularly as against the objections made and in the absence of a showing of injury this bill shows no error.

It is vigorously insisted that the evidence is insufficient and that the Court should have peremptorily instructed a verdict of not guilty because the State proved by the prosecuting witness, Lowe, that appellant had told him at Ballinger that he bought this cultivator from a German at the town of Rowena, which bound the State, its falsity not being shown. The statement of facts shows that the State concluded its testimony without proof of this statement. Thereupon the appellant testifying for himself stated that in the Sheriff's office at San Angelo immediately after his arrest he had made this statement to Mr. Lowe. When he left the witness stand, prosecuting witness, Lowe, was immediately called as a witness and denied that appellant had so stated and testified that such a statement was made at Ballinger and not San Angelo. The State's testimony was therefore in impeachment and rebuttal. Besides, it plainly appears that the State does not rely for a conviction alone upon the confession or admission of appellant. In fact the State did not rely in any degree upon same but affirmatively showed the possession of recently stolen property by appellant without resorting to proof of any confession or statement. Under these circumstances there was not even an issue raised as to the State being bound by the confession, which would require a charge on same. Slade v. State, 29 Tex.Crim. App. 392; McKinney v. State, 48 Tex. Crim. 404; Casey v. State, 54 Tex.Crim. Rep..

Believing the evidence sufficient and finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.