Clark v. State , 152 Tex. Crim. 446 ( 1948 )

The State's Attorney has filed a comprehensive brief herein which we think answers every contention made by the appellants. We, therefore, adopt the same as the opinion of the Court. The brief reads as follows:

"The appellants were jointly indicted and jointly tried in the District Court of Bowie County, Texas, for the offense of felony theft, were found guilty by the jury, and their punishment assessed at four years each in the state penitentiary.

"This is the second appeal in this cause, the opinion in the former appeal being reported in Volume 197 S.W.2d 111.

"The facts are substantially the same in this appeal as they were on the former appeal.

"The court's charge in this cause we think correctly submitted to the jury the law applicable to each issue raised by the evidence, and apparently appellants were satisfied with the charge requested other than a request for a not-guilty verdict.

"By Bill of Exception No. 1 appellants complain of the action of the trial court in permitting the witness, Robert Cowan, who was testifying in behalf of the State, to state in reply to a question propounded by the district attorney and over the objection of appellants, that the replacement value of the insignia collection alleged to have stolen would be better than three hundred dollars, and that some of it could not be replaced.

"Appellants contend in said bill that it was error to permit the State to prove the replacement value because, as contended by appellants, the State has failed to show that the insignia collection had no cash market value. The court qualifies this bill to show that that portion of same reading 'the State having failed to show that the insignia collection had no cash market value' was merely the contention of the appellants.

"This Court stated in its opinion in the former appeal that if the property had no reasonable cash market value at the time of the theft that its replacement value is the test. Apparently the trial court was following this rule.

"By Bill of Exception No. 2 appellants complain of the action of the trial court in permitting Mrs. Cowan to testify, over appellants' objection, that the value of the bedspread alleged to have been stolen was one hundred dollars. We submit that the court did not commit error in permitting this testimony, as the witness, Mrs. Cowan, after testifying about her knowledge of the price of bedspreads of the same or similar character and design, stated that she was familiar with the market value of the bedspread in question on the date of the alleged offense, and it was one hundred dollars.

"By Bill of Exception No. 3 appellants contend that while the defendant, George A. Clark, was testifying, the State's attorney asked him on cross-examination: 'How long since you and your wife have seen her (speaking of the daughter of the defendant, Donnie Clark?'); that defendants objected to the question as being immaterial, irrelevant and prejudicial, and shows that the objection was overruled and exception taken.

"The court qualifies this bill by stating that the question was never answered by the witness, and that the same evidence sought to be elicited by the question was later admitted without objection in the testimony of the defendant, Donnie Clark. The bill, as qualified, obviously fails to reflect error.

"By Bill of Exception No. 4 appellants complain of the action of the trial court in failing to instruct the jury to return a verdict of not guilty, and by Bill No. 5, they complain of the action of the trial court in submitting the issue of felony theft to the jury. We respectfully submit that each of said bills is wholly without merit.

"And, lastly, by Bill of Exception No. 6, appellants complain that the court erred in instructing the jury to disregard the evidence of the witness, J. P. Hugghins, with reference to the fact that he was in the war. The court qualifies this bill by stating that he permitted the witness Hugghins to testify relative to his service in the recent war, over the objection of the district attorney and upon the provision that the attorney for defendants would connect the witness' service with the war with the facts in the case, and that after the witness had testified that his service in the war was in no way connected with the case or in any manner relevant thereto, the court did instruct the jury to disregard the same. We fail to perceive any error in such instruction.

"We, therefore, submit that this record, as brought forward, fails to reflect error, and the judgment of the trial court should be affirmed."

The judgment is accordingly affirmed.

ON APPELLANTS' MOTION FOR REHEARING.