Tucker v. State , 23 Tex. Ct. App. 512 ( 1887 )

Willson, Judge.

There are two counts in the indictment, the first charging the defendant with the theft of a yearling, the property of George W. Lewis; the second charging one Noon Tucker with the theft of said yearling, and that the defendant fraudulently received said yearling from said Noon Tucker, knowing that the same had been stolen by the said Noon Tucker. Defendant was convicted on this second count.

Upon the trial the court permitted the State, over defendant’s objection, to prove by one Thedford that he met Noon Tucker driving said yearling to deliver the same to Bachelor, to whom the same had been sold by defendant; that Thedford asked Noon Tucker “ if that [meaning said yearling] was one he had mavericked; ” that said Tucker at first made an evasive answer to said question, but afterwards said it was one they had raised. This testimony was, we think, unquestionably competent as bearing upon the issue of the guilt of Noon Tucker of the theft of the yearling. It was essential for the State to prove that Noon Tucker had committed a theft of the yearling, in order to establish the charge against the defendant, contained in the second count of the indictment. This testimony tended to establish such theft, and the court did not err in admitting it. In his charge to the jury the judge properly and explicitly limited this testimony to the second count in the indictment, instructing the jury that it must not be considered by them in determining whether defendant was guilty under the first count, that is, guilty of the theft of the yearling.

But defendant complains that the charge of the court does not sufficiently limit and restrict the purpose for which this testimony might be considered by the jury. He contends that the jury should have been further told that they could only consider it in determining whether Noon Tucker was guilty of the theft of the yearling and could not consider it as any proof that defendant fraudulently received said yearling, knowing that Noon Tucker had stolen it. It would have been proper for the court to have so instructed the jury, perhaps, but the omission to do so was not excepted to by defendant, or in any manner called to the attention of the court at the time of the trial, as far as is disclosed by the record, and we do not think the error, if error it was, could have operated to the prejudice of defendant, as said testimony did not even in a remote degree tend to show that defendant had fraudulently received the yearling, knowing the same to be stolen property. Said testimony only bore upon the issue of Noon Tucker’s guilt of the theft, and for this purpose if was clearly admissible.

Opinion delivered June 11, 1887.

Several exceptions were taken and reserved to the charge of the court, all of which have received our careful consideration. While the charge is too voluminous, perhaps, and not connectedly arranged; and while some of the paragraphs thereof, considered singly and separately from other paragraphs, are not critically correct, still, when the charge is viewed as a whole, we find no material error in it, and when thus viewed, defendant’s exceptions thereto are not well taken.

We perceive no error or even impropriety in the court informing the counsel, in the presence of the jury, with regard to the rule which would govern the court with respect to exceptions to the charge. This could not reasonably be'construed to be an intimation on the part of the court, that in its opinion the charge would not be satisfactory to the counsel for defendant. It certainly could not have prejudiced the defendant’s case in the minds of any jury possessed of common sense. The subsequent action of the court in relation to the exceptions to the charge was after the jury had retired, and, though it was error to require counsel for defendant to point out specifically at that time the errors in the charge complained of, this could not in any way have operated to the prejudice of the defendant, as he after-wards obtained from the court proper bills embodying all exceptions to the charge.

In view of the evidence adduced on the trial, we do not think the court erred in refusing defendant’s application for continu- ° anee. It was a third application, and all material facts proposed to be proved by the absent witnesses were proved by other witnesses, who testified in behalf of defendant on the trial. Such being the case, we do not feel called upon to revise the action of the trial judge upon the application for continuance.

While the evidence proving defendant’s guilt of the offense of which he stands convicted is in the main circumstantial, and is, in some particulars, rebutted by evidence adduced by defendant, still, in our judgment, there is sufficient evidence to sustain the conviction, and we can not say that the trial judge erred in refusing to grant the defendant a new trial upon the ground of the insufficiency of the evidence.

We find no material error in the conviction, and it is affirmed.

Affirmed,