Roberts v. State , 64 Tex. Crim. 135 ( 1911 )

Appellant was indicted, charged with the theft of a yearling, the property of F.C. Robinson. Upon a trial, he was convicted and sentenced to two years in the penitentiary.

There are six bills of exception in the record, the first complaining that while the witness, Volmer, was on the witness stand, he was asked the following question: "Do you know F.C. Robinson?" and upon the witness answering he did, he was asked to state whether or not the yearling belonged to him, to which question the defendant objected, and upon his objection being overruled, the defendant reserved a bill of exceptions; but in the bill it is nowhere stated that the witness answered the question or what the answer was. This bill is so incomplete it can not be considered. Tullis v. State, 28 S.W. Rep., 199.

In his second bill, defendant complains that in answer to the statement of the district attorney, "you place it now on the very spot where it was killed," the witness, Tom Roberts, stated: "I have a right to, it was running right in there," when the district attorney remarked: "Of course, if you want to save your uncle, of course you have a right to —" When the defendant objected to the side-bar remark, and the court sustained the objection, and the district attorney withdrew the question and requested the court to instruct the jury not to consider it, and the court instructed the jury: "Gentlemen, you will not consider this remark of counsel in considering the guilt or innocence of the defendant in this case." This could not have injured defendant in view of the prompt instructions of the court, and presents no error. The bill in itself is incomplete.

The defendant had testified that the animal belonged to McCullough and Tom Roberts had marked the animal for McCullough, and while he was on the witness stand, the State asked him, "How long before this animal was taken was this mark made?" to which the defendant objected. The bill does not give the answer of the witness, and as this defendant was claiming he killed and took the animal in good faith and relied on the ear marks as identification, the question was permissible. Adams v. The State, 35 Tex.Crim. Rep..

In bill No. 4, defendant complains of the following proceedings, while the witness, Anderson, was on the stand: "Q. Do you know whose animal it was he (deft) marked at that time?" A. "He told me — The court: ``Don't tell what he told you.' Q. "I will ask you to state whose animal he claimed at the time it was and who he was marking it for?" The State: "I object unless he knows of his own knowledge." Witness stated he knew nothing of his own knowledge only what he heard defendant say at the time. The court sustained the objection, when defendant stated that "if permitted, witness would have testified that defendant said at said time that the animal was McCullough's, and that he was marking it for him in his (Roberts') mark." The bill is incomplete in that it is not alleged or stated that this is the animal defendant is charged with stealing, and while we are not permitted to look to the statement of facts in aid of a bill, yet, if we do so, the witness states in his testimony: "I do not know the animal that he is charged as having stolen in this case." Childers v. State, 37 Tex.Crim. Rep..

In bill No. 5, the defendant again fails to state what the answer of the witness would have been, and is incomplete. We are not permitted to conjecture as to what the answer would have been. Adams v. State, 35 Tex.Crim. Rep..

Bill of exception No. 6 is in the same condition, and it is not shown that any answer was given to the question.

There is no complaint of the charge of the court, and the only other ground alleged is the insufficiency of the evidence to sustain the conviction. F.C. Robinson testified to the ownership of the animal alleged to have been taken, and says it was taken without his consent. Upon being informed that his yearling had been killed, he started to meet the man who killed it and upon overtaking defendant, he remarked: "You have a beef, as I see there, butchered; I understand it is mine." Defendant replied, "I guess not," when "I told him I knew it was; I told him "put it out so that I can see the head;" when defendant remarked, "Oh, it is branded." Witness replied, "I guess not, it is not branded, it is mine." "He and I then pulled it out on the grass. I saw the head and recognized the flesh marks on the head. My mark was on it; swallow fork in the right and underslope in the left ear. Defendant tried to show me a brand. There was no sign of a brand on it — nothing that looked like a brand. There were marks on the beef by which I could recognize it. It was about two and a half years old." He says, "I asked defendant about the mark and he could not tell me. He first said he had bought it, and when I asked for a bill of sale, he said he had none. I then asked him from whom he got it and he said McCullough, and upon my asking what he paid for it, he claimed he was going to get half for going out there and killing it. He said McCullough's mark was something like W.M. The head and ears were there, and he then said it was marked underbit in the left and swallow fork in the right. I have owned the animal since it was a calf and milked the mother. He stated that it was branded W.M., but it had no brand on it."

William Volmer testified he received information a beef was being killed over on the prairie, and he saddled his horse and went over there. Found defendant and Noonie Lewis. Defendant remarked in a joking manner, "I am not going to let Mr. Volmer see the meat." As he threw the head in, he said, "See here, this animal is marked swallow fork in one ear, and underslope in the other." Witness said, "You have killed Mr. Robinson's heifer," and he answered, "Well, it was Roberts killing it." It was F.C. Robinson's yearling; "I know that of my own knowledge. It was killed about three miles from Brunner. Mr. Robinson's cattle run with my cattle. Never saw any cattle out there in the W.M. brand. He did not make any statement about buying it from anybody."

Wm. Fuchs testified: "I knew that yearling from a small calf. It was F.C. Robinson's calf. There is no question about my being mistaken about it. I examined the head and hide the day it was killed. There was no brand on it anywhere. I have experience in the examination of hides and cattle. Had there been a brand on it I would have discovered it. It was marked swallow fork in the right and underslope in the left ear. Roberts, the defendant, claimed it was branded ``U.M.' or ``UMA.' I would not be positive which, but did not say anything about the ownership of the cow in my presence. I was called in to determine whether there was a brand on it. There was none.

A.J. Tucker testified that he had been informed about defendant butchering Mr. Robinson's yearling and he telephoned Mr. Robinson. Mr. Robinson recognized it as his yearling. "I examined the hide for a brand. There was no brand on it. The hide was under the meat. Mr. Robinson took it out. The defendant did not help him."

F. Frel, Jr., testified he saw defendant shoot the yearling. He was about six miles from Houston and three miles from Brunner, and he identified the defendant as the man who killed the yearling.

For the defendant, M.D. McCullough testified he knew the animal testified to in this case, and had known it since it was dropped, and it belonged to him. That he knew it by its flesh marks. He did not know how it was marked, as Tete Roberts (a brother of defendant), had marked it in his mark, saying, "Your brand hardly shows any mark, and I put my mark on her. My brother assisted me in branding her. I branded her through the hide. I branded her light. The animal was killed on Saturday and I examined the hide the following Sunday. I found no brand. In branding, I merely brand the hair. That hide was the hide of my cow if flesh marks go for anything. I authorized defendant to kill her and bring her home; that is as far as the contract went. I expected to pay him for his services."

Tom Roberts testified that defendant was his uncle; that he marked a kind of brown, mottled face heifer yearling for Mr. McCullough; marked it swallow fork in the right and underslope in the left ear; that the heifer was about two years old when he marked it. That the mark belonged to his grandfather and he, witness, had been using it for thirty-four years. "I examined the hide of the animal that defendant is charged with stealing. I identify that hide, to the best of my knowledge and belief as being the hide of the animal I marked for Mr. McCullough. I had known the animal for about a year. It was in the winter before the November in which it was killed, I marked it."

Miles Anderson testified he was with T.B. Roberts when he marked a little black, mottle-faced yearling. Did not know whether it was the yearling defendant was charged with stealing or not. He was with him only when he marked one yearling; knew nothing further except what T.B. Roberts told him.

Ira McCullough testified that he was a brother of M.D. McCullough, and knew the animal defendant was charged with stealing. That his brother, M.D. McCullough, had raised it and it belonged to his brother. That he helped brand the animal; it was branded in August, and he says, he told his brother at the time it was branded so lightly that the brand would not hold on the hide, and he said he was afraid to brand it too deep on account of the flies and worms. Did not know anything about the ear marks, but identified it by the flesh marks.

C.N. Roberts, defendant, testified he knew the animal he was charged with killing and had known it since it was a calf, and that M.D. McCullough owned it and he killed it under instructions from McCullough. "I identified the animal by ear marks and flesh marks; she had been branded, but it did not peel; she was brown, with mottled face. I never saw the brand on her. I had seen the mark on the animal, and had known the mark since I was a boy." On cross-examination he says he did not tell Mr. Robinson that he was killing the animal on halves; the marks on the ears had all healed up, and the hair had grown out on them; it was not such a very old mark, not over four months old. The mark was just there the last part of the winter before it was killed. "McCullough told me he would pay me for killing it. Mr. Robinson did not take the hide out to examine it. I took it out. It was not concealed. I killed the animal in broad daylight, on the prairie near the public road, and skinned it with a pocket-knife.

The State, in rebuttal, again placed Mr. Volmer on the stand and he testified he examined the hide the day it was killed, and had seen the hide since. It had no brand on it, and the ear marks had been on the animal for two or two and a half years. Had known the animal since it was a sucking calf, and it belonged to Robinson, and it was not possible for him to be mistaken. That Robinson's cattle run with witness' cattle and McCullough had no cattle on that range.

F.C. Robinson, recalled, testified that he marked the heifer when it was two or three months old. The ear marks on the animal were old — had been there a long time. "I examined the hide carefully. In my conversation with defendant he claimed the animal belonged to McCullough, and that McCullough had agreed to give him half to kill it." The court charged the jury:

"You are instructed that if you believe from the evidence that the cattle described in the indictment was the property of McCullough, you will acquit the defendant, or if you have a reasonable doubt thereof, you will acquit him.

"If you believe from the evidence that the defendant, at the time of taking possession of the cattle described in the indictment, honestly believed that the said cattle was the property of McCullough, you will acquit him whether in fact the one head of cattle belonged to McCullough or not, or if you have a reasonable doubt upon this point, you will acquit the defendant."

This fairly presented the theory of the defendant to the jury. No special instructions were requested, and in the motion for new trial, there is no complaint of the charge. The jury saw and heard the witnesses and they found against the contention of the defendant. The judge trying the case also saw and heard the witnesses, and he finds against the theory of defendant in overruling the motion. The jury, under the law in this State, are the judges of the credibility of the witnesses, and the weight to be given their testimony, and where there is ample evidence to sustain their finding, we are not disposed to disturb their verdict, especially in view of the fact that all the witnesses, both for the State and defendant, testify that the hide of the animal had no sign of a brand on it, or where any brand had attempted to be placed on it. Also, defendant's theory was that the animal had only been marked a few months, while the State's evidence was that it was an old mark.

There is evidence to support the contention of defendant that even though the animal belonged to Robinson, he took it under an honest belief that it belonged to McCullough. However, Robinson testified that when he first accosted defendant, defendant told him, that the animal was branded and McCullough was giving him half to kill it. Defendant denies this and says he only said McCullough had promised to pay him. McCullough say he was not to give him half, but only to pay him for his labor. The witness, Volmer, says defendant gave no such explanation when first accosted and told him it was Robinson's heifer he was killing, but only said, "Well, this is Roberts killing it." Under the charge of the court that even though the jury believed it was Robinson's yearling, yet, if defendant believed at the time he took it, it belonged to McCullough, or if the jury had a reasonable doubt on this point, to acquit him. It is only where there is comparatively no evidence, or the great preponderance of the evidence is in favor of the defendant, that we feel authorized to disturb the finding of a jury.

Judgment affirmed.

Affirmed.