Swafford v. State , 75 Tex. Crim. 357 ( 1914 )

PBEHDEBGAST, Peesidixg Judge.

—Appellant was convicted of cattle theft, and the lowest punishment assessed.

There is much conflict in the testimony. That of the State and the State’s theory of the case is amply sufficient to show that appellant and one Luther Simpson stole a steer at night, drove it several miles from the pasture out of which they took it, and killed and slaughtered it in an out of the way place.

Appellant’s defense was that he bought the steer from the young 17-year-old son,—Boy Haney,—of J. M. Haney, the owner. This was the main issue. Appellant introduced sufficient evidence, if believed, to have established bis defense. On the contrary, the State introduced ample evidence to the reverse effect.

The court’s charge, in addition to requiring the jury to believe beyond a reasonable doubt all the requisites that the appellant stole the steer, as alleged, before they could convict him, in a separate paragraph told the jury: “If you believe that defendant bought the animal in question from Boy Haney, or if you have a reasonable doubt thereof, you will acquit the defendant.” In addition to this he charged that the burden of proof was on the State; that defendant was presumed to he innocent until his guilt was established beyond a reasonable doubt, and in case they had a reasonable doubt as to his guilt to acquit him. And also told them that they were the exclusive judges, of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony.

The State, over appellant’s objection, was permitted to have Curtis Gorman, one of its witnesses, to testify, in substance, that at appellant’s instance and solicitation he went to the home of Hat Hanuel with Bill Swafford, appellant’s brother, and represented that he, Gorman, - was Boy Haney, and offered Hanuel $50 to swear that appellant had told him that he, appellant, stole the alleged stolen animal; that he did do this as requested by appellant and reported to appellant that Manuel refused to so swear; that appellant was to pay him, Gorman, whatever it was worth for doing what he did. Over his objections, the State was also permitted to prove by Boy Haney that he did not go to said Manuel’s home with Curtis Gorman and offer Manuel $50 to so testify. The court, in approving one of the bills, explained the matter thus:

“In order that the court may understand the connection and the matter to which this bill refers, it is explained that at a trial of this case at a former term, the witness Curtis Gorman was placed upon the Avitness stand by the defendant, and at that time testified that he went to Mat Manuel’s house with Boy Haney and heard Bojr Haney tell Mat Manuel that he was Boy Haney and would give him (Manuel) fifty dollars to testify ttiat Swafford had admitted to him (Manuel) that he (Swafford) had stolen the steer. Upon the trial of the case at this time Gorman was placed upon the stand by the State and he testified that he did not go to Mat Manuel’s house with Boy Haney, but in truth and in fact, went Avith a brother of the defendant there at the defendant’s request and represented himself to be Boy Haney. Under this state of the record the court believed it permissible for the State to put Boy Haney upon the stand to show that he in fact had never gone to Mat Manuel’s home and made any such proposition; the court believed that this was true, although upon the trial of the case at this time the defendant had offered no testimony that Boy Haney had gone to the home of Mat Manuel.”

We take it from these bills that the State sought by this evidence to show that Boy Haney, one of the State’s material witnesses, had tried to manufacture testimony against appellant and that by showing this he would destroy the effect of Boy Haney’s testimony before the jury and thereby lead them to believe that Boy Haney had really sold him the animal or stolen it and thereby secured his acquittal. It turned out that instead of showing that Boy Haney was seeking to manufacture testimony against appellant, that appellant was seeking to manufacture .testimony for himself and against Boy Haney. Under the circumstances we think the court committed no error in admitting the testimony objected to.

At the same time appellant was indicted for this theft the grand jury also indicted Luther Simpson for the theft. Simpson turned State’s evidence with the State’s consent and the case was to be dismissed as to him, he testifying against appellant. Appellant proved by many witnesses that Simpson’s reputation was very bad, but also showed that he had known him for several years. The appellant himself testified fully.' On cross-examination the- State asked him if he didn’t know of the bad reputation of Simpson. He answered that he had heard it was bad but did not know. The State then asked him this question: “Didn’t you know it was? Heard people talking it—heard he was unworthy of belief, and so on? What did you want to get tangled up with him for if he was that kind of a fellow ?” To this latter question the appellant objected on the sole ground that it was argumentative. He answered the question that “Simpson wanted to buy a beef, and I had one to sell and would as soon sell to him as to anyone.” This shows no reversible error.

Appellant made no objection to the court’s charge as this record shows. He asked this special charge: “You are further charged that 3rou must not consider as amr evidence of guilt of defendant the insulting questions of the county attorney, such as don’t you know it is a lie ? Why don’t you tell the truth ? etc.” Hothing in the record indicates when this charge was asked. Ho objection was made to such questions, if they were asked, during the trial. The fact that he asked a charge on the subject, even if he had asked it in the time and manner required by law, would be no evidence that any such questions were asked. The record does not show that the charge was asked at such a time as to authorize this court to review it, but if it did, the court’s refusal to give the charge shows no error.

In one ground of appellant’s motion for new trial it is set up that he had been indicted for the offense of subornation of perjury in connection with said Curtis Gorman; that Gorman and other witnesses had gone before the grand jury long prior to that indictment and it was not returned until June 26, 1914; that at the time he was out on bond in this case; that he was arrested on the subornation of perjury indictment on June 30th and placed in jail, a short time before his trial in this case, and. not brought into court or allowed to see his attorney until this case was called; that the State announced ready in this case and he .also; that he was not served with the indictment for subornation of perjury until convicted in this case; that he was not guilty of subornation of perjury and with proper opportunity could have so proven; that after his conviction in this case he demanded trial on the other, had his witnesses present and ready to prove that he was not guilty when the comdw attorney, with the consent of the court, dismissed that case against him. To this ground of his motion he attached what purports to be a copy of the State’s motion to dismiss the subornation of perjury case against him. The ground of the motion to dismiss that case is, in substance, that the State would have to depend upon the testimony of Curtis Gorman, who, in effect, had sworn both ways on the question and the State was unable to corroborate Curtis Gorman; that the appellant had had him go to Mat Manuel’s house and attempt to bribe him to testify as shown above.

The State made a motion to strike out that paragraph of appellant’s amended motion for new trial on the ground that it was immaterial, irrelevant and incompetent, threw no light on this case or' any feature of it and only encumbered the record. He also alleged that the matters set out in that ground of the motion was untrue and did not set out the facts therein referred to.

We can not tell, and the record does not disclose, whether the court heard evidence on this matter. At any rate, the court struck out that ground of the motion for new trial. As the matter is presented, we think it was insufficient to require the court below to grant him a uew trial, and that, therefore, the court did not • err in striking out that ground of his motion; at least, that it does not present reversible error.

The judgment is affirmed.

Affirmed.