Ashlock v. State , 1884 Tex. Crim. App. LEXIS 59 ( 1884 )

Willson, Judge.

1. It was sufficiently proved that the offense was committed in Collin county, the c.ounty of the prosecution. The stolen mare was running in her old range, where she had been raised,- in Collin county, and had been there for a week prior to the time she was seen in defendant’s possession in Dallas county. This was sufficient to prove that when taken she was taken in Collin county.

2. Witness Coleman was asked: “Did Kelly and Reynolds tell you the day the mare was seen in Dallas?” This question was objected to by defendant because it was leading, and because it sought to elicit testimony which would be mere hearsay. The objections were overruled, and the witness stated that Kelly and Reynolds told him that the mare was seen in Dallas on the twenty-second or twenty-third of November, 1882. We do not think the question in its form was a leading one. It is not every question which may be answered “yes” or “no” that is a leading question. A leading question is one which puts into the mouth of the witness the words to be echoed back, or plainly suggests the answer which the party propounding it wishes to get from him. This question did not suggest any answer, but merely led the mind of the witness to the subject of inquiry, which is permissible even in an examination in chief. That it called for hearsay testimony, and did in fact elicit such testimony, is true, and a strict enforcement of the rules of evidence would exclude the answer of the witness. But we do not think the admission of the witness’s answer, in view of the facts of this case, such error as would authorize a reversal of the judgment. It appears from the record that Kelly and Reynolds testified in the case, and they stated in their testimony that they had told the witness Coleman precisely what he testified they had told him, thus supplying and superceding the hearsay statement objected to. Besides, the statement of Coleman as to what Kelly and Reynolds told him could have no appreciable bearing upon any issue in the case, and was therefore wholly immaterial when considered in connection with the testimony of Kelly and Reynolds. (Gose v. The State, 6 Texas Ct. App., 121; Reynolds v. The State, 8 Texas Ct. App., 412.)

3. We think the district attorney had the right, on the cross-examination of defendant’s witnesses, to elicit from them that they had testified before the grand jury in this same case, and had done so without being subpoenaed, and at the instance of defendant, etc. This was allowable for the purpose of showing the bias of the witnesses in favor of the defendant, and to enable the jury to properly weigh the testimony of said witnesses. (Stevens v. The State, 7 Texas Ct. App., 39.) We think, further, that the district attorney m his argument to the jury did not infringe upon the rules in referring to the facts thus elicited, and we perceive nothing to condemn in his remarks so far as they are set forth in the record. He stated nothing but what had been proved before the jury, and the record does not show, as contended by appellant’s counsel, that he argued to the jury that, because the grand jury had found the bill of indictment, having the testimony of defendant’s witnesses before them, therefore the trial jury should also disregard the testimony of these witnesses and convict.

4. It is objected to the charge of the court that, in stating the elements of the offense of theft, it does not instruct the jury that the taking must have been fraudulent. The charge instructs the jury that “if the defendant took the mare with the fraudulent intent to appropriate her,” etc., and does not use the statutory word “fraudulent” as descriptive of the taking. Were this objection made to an indictment thus describing the offense, it would be well made. (Muldrew v. The State, 12 Texas Ct. App., 617.) But we are not to test a charge by the strict rules applicable to an indictment. All that can be reasonably required in a charge is that it should present the law of the case substantially and correctly, in a way that the jury will understand, and not be confused or misled by it. In the charge under consideration, the jury were told that if the defendant took the mare with the fraudulent intent to appropriate her to his own use and deprive the owner of the value thereof, such taking would be theft. While this would not be sufficient in an indictment, we certainly think it is sufficiently accurate in a charge. If the intent to appropriate the property and deprive the owner of the value of it was a fraudulent one, and existed at the time of the taking, then the taking could not have been otherwise than fraudulent, and the jury could not possibly have been misled as to the law of the case by the omission in the charge to qualify the taking by the word “fraudulent.” There was no exception taken at the trial to this portion of the charge, and while in our opinion it would have been more perfect , if it had qualified the taking by the use of the word fraudulent, still This error, if it be an error, was not calculated to prejudice the rights of the defendant, and is therefore not of a character to affect the judgment.

5. In answer to the objections made to the charge of the court upon the rule governing circumstantial evidence, it is sufficient to say that it was substantially correct and was not excepted to; and we cannot see that the defendant has been prejudiced thereby.

6. By the charge the jury were instructed that, if they had a reasonable doubt of the defendant’s guilt, arising from the evidence in the case, they should acquit him. This was sufficient. It was not required that this instruction should be given with reference to every or any particular phase of the case. (McCall v. The State, 14 Texas Ct. App., 353.) There was no error, therefore, in refusing the special charge requested by defendant.

7. The defense relied upon was that defendant came into the possession of the mare in good faith; that he won her at card playing from one Hubble. It appear from the evidence that Kelly, the owner of the mare, turned her out on the range November 12. On the fourteenth day of the same month one of defendant’s witnesses testified that he saw a man whom he afterwards learned was named Hubble, in possession of a mare suiting the description of the animal stolen. After this Kelly’s mare was seen at Coleman’s, her old range, and was observed there for a week or more. On the twenty-second or twenty-third of November, defendant had possession of her and sold her in Dallas. It was testified to by one of defendant’s witnesses that, a day or so before defendant was seen with the mare in Dallas, he, witness, was present in the woods at Yonkepin lake, between the forks of Elm and Pecan creeks, and saw defendant win the mare at card playing from one Hubble; that the mare was not present at the time, but that Hubble said she was running at large in Coleman’s lane, and that defendant bet his horse against the mare and won her.

Upon this state of evidence the co.urt charged the jury as follows: “If you believe from the evidence that the defendant won the mare in controversy from some person who claimed to be the owner of said animal, at a game of cards, and that he believed such person to be the owner, you will find the defendant not guilty, notwithstanding you may believe that such person was not in fact the owner of the mare.” It is insisted that under the facts of this case the court should have further charged that if defendant acquired possession of the mare in any way from Hubble, who had stolen her, that he, defendant, would not be guilty of the theft, although he might have known that the animal was stolen property. In a proper case such a further charge would be correct, but, with reference to the facts of this case, it was not, in our opinion, demanded, and would not have been applicable. The mare was not in the possession of Hubble when defendant won her. She was in her accustomed range and in the constructive possession of her owner. Defendant did not acquire possession of her from Hubble, If Hubble had, prior to. that time, stolen her, he had turned her loose, abandoned possession of her, and she was no longer a stolen animal, but was in the legal possession again of her true owner. This being the case, the prior theft of the mare by Hubble cannot be availed of as a defense. When the mare was subsequently taken from her range, the taking constituted another and distinct taking, and if the act was fraudulent it.was theft, although authorized by Hubble. That is, if Hubble had stolen the mare and then turned her loose, so that she was again in the possession of her owner, and defendant had, while the mare was thus in possession of the owner, purchased or won her from Hubble, and then took her, such taking would be theft, if fraudulent and with a knowledge on the part of defendant that Hubble did not own her; because he did not acquire possession of the property from Hubble, but took it from the possession of the owner. We think the charge of the court upon this branch of the ease went as far as the facts demanded it should, and that it was as favorable to defendant as it should have been.

8. When defendant had the mare in Dallas he was asked by a witness who knew her, from whom he had obtained her? and he answered, from Fox Smith. It was admitted afterwards by defendant, and also conclusively proved on the trial, that this statement was false. Subsequently, when pressed more closely upon the subject, he stated that he had bought the animal of a stranger, in the fork of Sim and Pecan creeks. It is contended by his counsel that this was a reasonable explanation of his possession, and that it devolved upon the State to show the falsity of it. Conceding that it was a reasonable explanation, we do not think the State was called upon to disprove it. When defendant’s possession was first challenged, he said he got the mare from Fox Smith. This statement the State proved to be false. This was all the law required the State to do. It would be unreasonable, and not the law, to require the State to disprove every explanation which a defendant might give, however reasonable, of his possession of stolen property. This requirement extends no farther than to the explanation giveu when his possession is for the first time questioned.

Other questions are raised in the record than those we have noticed, but in our judgment they are unimportant, and do not require discussion. We have found no such error in the record as in our opinion would warrant a reversal of the judgment, and it is therefore affirmed.

Affirmed.

Opinion delivered April 16, 1884.