Burgess v. State , 107 Tex. Crim. 90 ( 1927 )

The appellant was convicted in the County Court for the offense of petty theft, and his punishment assessed at a fine of one dollar and one day in jail.

The indictment charges the theft of four hens, of the value of fifty cents each, from the possession of Earnest Logan.

We find in the record a motion to dismiss the appeal, filed by the County Attorney of Wood County. In support of the motion, it is shown that the appellant was convicted on the first day of December, 1926, after which he filed a motion for a new trial; that on the first day of January, 1927, the motion for new trial was overruled, and the appellant gave notice of appeal; that after the motion for new trial was overruled, appellant filed an appeal bond, which was approved by the County Judge in vacation. The motion to dismiss further alleges that the sheriff never took possession of the appellant, and never placed him in jail by reason of his conviction; that the appellant never, at any time during the term at which he was convicted, entered into a recognizance. The motion to dismiss is supported by an affidavit of the sheriff which shows that he never at any time placed the appellant in jail by reason of said conviction, and that the appellant is still at large.

In support of the contention that the appeal ought to be dismissed, we are cited to the case of White v. State,221 S.W. 283. In that case appellant was convicted for a misdemeanor, and the contention was that the record did not contain a recognizance or any affirmative showing that the appellant had been continuously in jail. The record in the White case neither showed a recognizance nor an appeal bond. In the instant case, we find in the record an appeal bond.

The statute, Art. 830, C. C. P., provides as follows:

"If for any cause the defendant fails to enter into recognizance during the term at which he was tried, but gave notice and took an appeal from such conviction, he shall be permitted to give bail and obtain his release from custody by giving, after the expiration of such term of court, his bail bond to the sheriff with two or more good and sufficient sureties," etc.

For some reason, which the record does not disclose, the appellant in the instant case failed to enter into a recognizance, but he did execute an appeal bond, which was approved by the trial judge.

On motion for rehearing in the White case, the court, in considering Art. 918, C. C. P. (now Art. 830, C. C. P.), used this language:

"This gives to the appellant the right to make a bail bond after the expiration of the term of court at which he was convicted, but does not seem to change the necessity for the record upon appeal to show that he was either in jail or at large upon bail or recognizance. He may be in custody, and that fact appear of record, in which event the jurisdiction of this court will attach, or he may be on recognizance, made during the trial term, or on bail given after the expiration of said trial term, either of which latter facts appearing of record, our jurisdiction would also attach."

In the instant case, the record discloses that the appellant is on bond made after the expiration of the trial term, which would give this court jurisdiction. The distinction between the White case, supra, and the instant case, is that in the White case there appeared in the record neither a recognizance nor an appeal bond nor a certificate that the appellant was in custody, while in the instant case we find in the record an appeal bond.

Appellant has two bills of exception in the record. Bill of exception No. 1 complains of the action of the trial court in permitting the witness Jack Sutton to testify that he lost four hens on the night of May 29, 1926 (Saturday), and found them on the Monday or Tuesday following at the store of L. D. Amason. Appellant's objection was that he was charged with the theft of four hens from Earnest Logan, and the testimony of the witness Sutton was evidence of another and different offense with which the appellant was not in any way connected, and was prejudicial to the rights of appellant. We are unable to agree with this contention. The witness Earnest Logan, whose chickens appellant is charged with stealing, lost four hens Saturday night, May 29, 1926. The following Monday or Tuesday he identified his hens at the store of L. D. Amason. L. D. Amason testified he purchased four hens from appellant and some hens from Earl Henderson, they being together at the time Amason made the purchase; that he purchased these hens from appellant and Henderson about 4 o'clock Sunday morning, the 30th of May, 1926. On the same night Logan lost his four hens, the witness Jack Sutton lost four or five hens, which he identified the following Monday or Tuesday at the store of L. D. Amason. Sutton testified he lost his hens on the same Saturday night Logan lost his. We find appellant and Henderson, each with a sack of hens, appellant's sack containing four hens (we do not know how many hens were in Henderson's sack), selling them to Amason on Sunday morning at 4 o'clock — an unusual day and hour to be engaged in the sale of chickens. It is a strange coincidence that Logan and Sutton should each lose four hens on the same night, and each find them the following Monday or Tuesday in the same chicken coop in possession of the same man. The evidence of the witness Sutton is so closely connected with the entire transaction that same is admissible as tending to connect appellant with the offense.

The appellant, in his second bill of exception, complains because the court failed to charge on circumstantial evidence. The appellant requested a charge on circumstantial evidence, but did not prepare a charge in writing and tender it to the court. Art. 662, C. C. P., is as follows:

"The court is not required to charge the jury in a misdemeanor case except at the request of counsel on either side. When so requested he shall give or refuse such charges, with or without modification, as are asked in writing."

The appellant, having failed to prepare his special charge on circumstantial evidence and request the court to give same, is precluded from raising this question on appeal. Elliott v. State, 59 Tex.Crim. Rep.; Ellis v. State, 59 Tex.Crim. Rep.; Ellis v. State, 59 Tex.Crim. Rep.; Webb v. State, 63 Tex. Crim. 207.

Finding no errors in the record, the judgment of the trial court 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.

Morrow, P. J., not sitting.

ON MOTION FOR REHEARING.