Kennon v. State , 46 Tex. Crim. 359 ( 1904 )

Appellant was convicted of cattle theft, the punishment being four years confinement in the penitentiary. The statement of facts shows that appellant, Biddle Williams and Sam Hunter went to the pasture of W.L. Corn, about fifteen miles from where appellant lived, and stole four head of beef steers. The theft occurred at night, and the parties drove the cattle hurriedly to the home of appellant, reaching there about daylight. Two steers belonged to W.L. Corn's father, one to his brother, and the other to W.L. Corn. The proof shows that W.L. Corn at the time had the exclusive care, control and management of the pasture and the cattle. The conviction was had upon the second count of the indictment, charging possession and ownership of the pasture and all the cattle in W.L. Corn. Appellant insists that the court erred in the paragraph of the charge submitting this count to the jury, in omitting the word "actual" care, control and management. We do not think this was error. The evidence shows, as stated, that W.L. Corn had the exclusive care, control and management, and had the actual control also. The mere fact that the court failed to use the word "actual" as stated in the statute would not authorize a reversal. For a discussion of this matter see Alexander v. State, 24 Texas Crim. App., 126; Conner v. State, 24 Texas Crim. App., 245; Williams v. State, 26 Texas Crim. App., 131; Littleton v. State, 20 Texas Crim. App., 168.

By bill number 1 appellant insists that the court erred in permitting Hammil Scott to testify that he, with other deputies, visited appellant's place on the day of appellant's arrest. State's counsel thereupon asked witness, "Did you find any cattle hides after that?" Witness answered yes. To this appellant objected, and asked that the jury be withdrawn, which was done. Thereupon the State offered to prove by Scott that he found two hides under a culvert on the public road, and they were taken to the jail and identified by Corn, prosecutor. Defendant's counsel objected "because he was going to say Biddle Williams told him where the hides were and is going to say what Biddle Williams did." The court remarked "I have already instructed witness, and instruct him again not to mention Biddle Williams' connection with it." The objections being overruled, witness answered, "That Biddle Williams was with him." The State thereupon asked witness, "Where did you find the hides?" Appellant objected defendant was not present and could not be bound by the act of a third party. Over objections the witness answered, "that they were about a mile and a half south of the hospital, out here south of town, in a culvert on the public road. I found these hides the following day after Bob Kennon was arrested, about 2 o'clock in the afternoon." Biddle Williams, a principal and cothief with appellant, also testified in the case, having turned State's evidence. This testimony was clearly admissible.

Bill number 2 complains that Mrs. Kennon (appellant's wife) having testified that at the time of defendant's arrest he had been in the business of butchering, had a butchering outfit, and butchered for other people — Hampton, Wilson — and had slaughtered for Mann and for George Tandy. Thereupon she was asked to what extent was it known in that community that he was butchering for the public? This was objected to, and objection sustained. The bill does not show what the witness would have answered, and hence the bill being defective in this respect, we can not say there was any error. Furthermore, even conceding the bill is not defective, we do not believe such testimony would have been material.

Bill number 3 shows appellant proposed to prove by Mrs. Kennon what was the feeling between appellant and prosecutor Corn and his father. This bill is also defective. It does not show what the witness would have testified. We can not refer to the statement of facts to aid a bill of exceptions.

Bill number 4 shows that Mrs. Kennon testified on direct examination in reference to the visit of Scott to the house of Kennon, and that at the time of the trouble between Will Corn and her husband she was in the kitchen door. Upon cross-examination she was asked about said interview, and testified, "that little Bill Corn stood up in his stirrups and says, ``We will give you recourse, Mr. Kennon;' says, ``I will just show you,' and made at him. Witness was asked, ``That is not what he said, is it? Said, ``I will show you?' A. Who said it? Q. Bob. He didn't say to little Bill Corn when he spoke up and said something, — he didn't say, ``I will show you,' did he?'" To this unintelligible statement, appellant objected on the ground that the defense had not questioned the witness about the matter; that the defense had asked witness only one or two questions about this interview with Scott; and the State was not entitled to the whole conversation by reason of defendant having brought out part where the wife would be thereby testifying against her husband. But the State can only cross upon the questions brought out by the defense. The court overruled these objections. The objections did not show that the testimony above detailed was not germane to a legitimate cross-examination of the appellant's wife; and hence the bill can not be considered for that reason.

Bill number 5 complains that the State was permitted to prove by Tom Jackson that on the day of defendant's arrest he, with Akers, Scott, Purbis and Roark, went to defendant's house; and conversations occurred there with defendant; and that defendant did not mention that night, anything about the meat in question belonging to Biddle Williams or Sam Hunter, nor did he mention their names. Witness was then asked, "Did either the defendant or his wife or Willie Wilcox mention Sam Hunter or Biddle Williams?" Defendant objected to this as leading and incompetent. Witness answered no. This bill is approved with the explanation, "that defendant, his wife, and Willie Wilcox had all testified to facts which if true would naturally and almost necessarily have caused them on the occasion referred to in this evidence to charge Biddle Williams and Sam Hunter with the theft of the cattle." Under the explanation of the court we think the testimony is admissible. The bill does not show that appellant was not present participating in the whole conversation, and certainly, as stated by the court, it would be a strong circumstance to indicate a lack of truthfulness of his defense; that when first accused of the theft of the cattle, neither did he nor anyone in his presence make any claim that Biddle Williams and Sam Hunter had stolen the cattle. Furthermore the objections are too general to be considered.

Bill number 6 complains that the sheriff, John T. Honea, was permitted to testify to a statement made by appellant to him after he was arrested. This bill shows appellant had been previously warned by another officer, prior to making the confession to the sheriff, and a short while before said statements were made to the sheriff. Bill number 7 complains that the State was permitted to prove by W.L. Corn the condition of the cattle when found in possession of appellant, which he identified as his cattle. He testified that they showed to have been driven hard; they were drawn. The bill shows he had been engaged in handling cattle, and was qualified to testify and answer the question. The evidence was pertinent.

Bill number 8 complains that the court refused to excuse deputy sheriffs who were witnesses from the courtroom, on the ground that he needed them to wait on the court. This is within the exercise of the sound discretion of the court; and we do not think the court abused it.

Bill number 9 complains that Willie Corn was permitted to testify what the effect is upon fat cattle to drive them fast. Witness testified that it made their bowels loose, and they scour frequently. The bill is approved with the explanation, "that the witness had already testified that in tracking the steers lost from his pasture he found evidence on the road that the cattle he was tracking were scouring while traveling."

Bill No. 10 shows that appellant made a criminative statement to Hammil Scott, a deputy sheriff, after receiving the following warning: Scott told appellant that any statement he might make could be taken as evidence for or against him. Scott testified that he told appellant that any statement he made would be used as evidence against him on his trial, and did not say it would be used for or against him. This testimony was properly admitted; and the testimony of Corn raising the issue as to the proper warning being given was properly presented for the consideration of the jury in the court's charge. See Cortez v. State, decided June 15, 1904, for a discussion of this matter.

Bills 11 and 12 complain that Willie Wilcox was cross-examined by the State and the predicate laid for his contradiction upon an immaterial issue in this case. Under the explanation of the court to the bills we think this testimony was admissible — said Wilcox being a material witness for the defense, and the predicate for the impeachment being properly laid upon a material issue in the case.

Appellant insists that the evidence is insufficient to support the conviction; or rather to corroborate the accomplice. We are inclined to believe that the evidence would be sufficient without the testimony of the accomplice; but certainly with the testimony of the accomplice is amply sufficient. The evidence shows a bold and deliberate taking by appellant and his two confederates of four head of beef cattle from the pasture of prosecuting witness. There is no semblance of defense offered by the testimony of appellant. The judgment is affirmed.

Affirmed.