Norton v. State , 129 Tex. Crim. 503 ( 1935 )

We have examined with interest appellant's extended motion for rehearing. He first insists that we erred in not upholding his complaint of the admission of the testimony of State witness Alderson, in effect, that he had the exclusive care, management and control of the leased land from which the State claimed the alleged stolen pipe was taken. Appellant cites Bailey v. State, 18 Texas App., 426; Staha v. State,151 S.W. 543; Burges v. State, 26 S.W.2d 229; Daggett v. State,44 S.W. 148; Henshaw v. State, 39 S.W.2d 624. We are in accord with the doctrine of each of the cases mentioned, but are not satisfied that any of them apply to the facts of the case before us. In this case Mr. Alderson testified that he worked for a corporation which owned the lease in question, — and that he had the exclusive care, management and control of the lease and the company's properties thereon located. We do not believe such testimony to express merely an incompetent or an inadmissible conclusion. All corporations act through agents and employees in the conduct of their business and in all their property holdings. Some person, — whether Alderson or some one else, — would of necessity be called on to testify as to who had the care, management and control of the property of a corporation. As we view this record, not only did Mr. Alderson testify directly that the care, management and control of said property was in him, but he also stated the facts supporting this statement. Appellant advanced no defensive theory based in anywise upon the proposition that he had the consent of any other person claiming to have authority or be in control, nor do we find in the record a single word of testimony contradicting that of Mr. Alderson on this point. We do not believe appellant's position sound.

Appellant's next complaint is that Mr. Alderson was permitted to testify that the joints of pipe constituting the line were securely fastened together. The matter involved seems to us of entire immateriality. Whether the court erroneously permitted the witness to say that the pipe line was securely joined or not, could not possibly have injured the rights of the accused. He was accused of stealing a number of joints of pipe of a value stated.

Appellant next complains of the overruling of his bills of exception Nos. 3 and 5, in which appear his objections to the testimony of two witnesses as to the value of the pipe alleged to have been stolen. The rule is well settled in this State that a bill of exceptions to be sufficient must within itself manifest the error complained of. Neither of these two bills sets out any facts or any certificate by the trial court of the correctness or soundness of the appellant's objection. It is not sufficient to say in a bill of exceptions that the testimony of the witness was objected to because he was not qualified, — and then go only in argument and brief throughout the entire record in order to convince the appellate court that the complaint is well taken. In each of these bills it is made to appear that objection was made to the testimony of the particular witness on the ground that he was not shown to be qualified, but for aught we know from the bills themselves each witness may have been shown to be qualified beyond any cavil or question.

Somewhat similar to our statement above appears a necessary conclusion concerning appellant's complaint in bill of exceptions No. 11. It is set out that Sheriff Morrow testified that he talked with Mr. Alderson soon after the alleged theft, and Mr. Alderson told witness about the tools he found there. The objection was that the declaration of the sheriff would not be binding upon the appellant who was not present. There is nothing whatever in the testimony set out in the bill from which the jury could have drawn any hurtful inference concerning the accused. No issue related to any tools shed light pro or con upon the question of appellant's guilt. The matter seems immaterial.

The State's attorney questioned appellant's chief alibi witness as to whether or not in the past three or four months he had not testified in two other pipe theft cases for this appellant. The objection was that this was immaterial, irrelevant, had no bearing on the case, and was an attempt to impeach him on immatepial matters. We think it proper to show by such examination the friendship of the witness for the appellant to enable the jury to draw from such testimony his interest or bias.

Appellant has another complaint directed at our conclusion, based upon the authorities cited in the opinion, that proof of theft of a part of the property taken at one time may suffice to support the conclusion of the taking of all such property so lost. In this case appellant was seen in possession of ten joints of the forty odd joints of pipe taken; twelve other joints of said pipe were found near appellant's residence. All of the pipe had been taken within a few hours after the alleged owner had been to the place and observed all of the pipe there.

Being unable to agree with appellant in any of his propositions, the motion for rehearing is overruled.

Overruled.