Walton v. State , 41 Tex. Crim. 454 ( 1900 )

Appellant was convicted of the theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; and he prosecutes this appeal. A number of errors are assigned, but we will only discuss such as we deem important.

Appellant made a motion to quash the indictment, which contained two counts, — one for theft, and the other for receiving stolen property. The motion to quash the first count is based upon an insufficient description of the cattle; and that of the second count, because of the failure to allege that appellant fraudulently received and concealed said cattle. The court refused to quash the indictment, but gave in charge to the jury only the first count, for theft. We do not believe the motion was well taken as to either of said counts. The description of the cattle in the first count was "twenty head of cattle." This was sufficient. Coward v. State, 24 Texas Crim. App., 590, and authorities cited in White's Penal Code, sec. 1534. The objection urged to the second count was that same did not charge that it was done fraudulently. The indictment, as presented in the record, does contain this allegation, and it is in accordance with the approved form as laid down by Judge Willson. Wills. Crim. Forms, sec. 512, and authorities there cited. Besides this, if it be conceded that the last count was bad, yet there was no possible error in the action of the court, for all the testimony adduced was admissible under the first count, to show the theft of said animals; and, when the court restricted the action of the jury to the first count, this was all appellant could ask.

During the trial appellant became a witness on his own behalf. The State was permitted on cross-examination to ask him if he did not, at the depot in the town of Memphis, as he was going to his examining trial, and while under arrest, state to the sheriff, and in the presence of Pyle and others: "* * * to be as easy on me as you can. I have the money, and will pay for the cattle." To this question defendant answered that he did not make any such statement, whereupon the State was permitted to introduce Sheriff Wheat, F.L. Darnell, and Theodore Pyle, each of whom testified that at the time and place above mentioned, and while defendant was in custody of the sheriff, he did say to F.L. Darnell: "I am into it. Be as light on me as you can. I have the money, and will pay for the cattle." It was further shown, in this connection, that the sheriff then had defendant in custody, charged with this offense; that said defendant had not been cautioned that any statement he might make would be used as evidence against him. Appellant objected to all this testimony on the ground that he was then under arrest for this charge, that he had not been warned or cautioned by the sheriff, and that the testimony thus elicited from him was in the nature of a confession. We do not deem it necessary here to enter into a discussion of the reasons why said testimony was not admissible, inasmuch as this matter was thoroughly gone into in Morales v. State, 36 Texas Criminal Reports, 234, and the reasons for our decision therein stated. And see also Wright v. State, 36 Tex.Crim. Rep.. This testimony was inadmissible either to contradict defendant, — he being the witness, — or as original testimony against him. And in this instance it was liable to be used, and doubtless was used, by the jury, both as impeaching testimony and as original testimony against appellant, and was of the most damaging character. Being inadmissible, it is unnecessary here to discuss the failure of the learned judge to limit it to the purpose of impeachment. Testimony that is illegal can be limited to no purpose in the case.

Appellant complains that the court admitted certain evidence against him regarding the taking of certain cattle belonging to one Darnell; the ground of objection being that there was no evidence showing that appellant had stolen the Darnell cattle, — much less, that it was a contemporaneous theft with that charged against appellant in this case. The record bears out appellant's contention in both respects. It is shown, without controversy, that appellant had an interest in the Darnell cattle, and was in possession of them, and the most that can be said is that the evidence raises some suspicion that he might have embezzled said cattle. Before this character of evidence could be admitted against appellant, there should have been some testimony indicating with a reasonable degree of certainty that appellant was guilty of the theft of the Darnell cattle. Williams v. State, 38 Tex.Crim. Rep.. And, in addition to this, the theft of the Darnell cattle must have been shown to have been contemporaneous with the theft of the cattle for which appellant was being tried. James v. State,40 Tex. Crim. 190. The court evidently appreciated the difficulty of applying the ordinary rules to this testimony, for, in charging the jury on this branch of the case, he told them that the State had introduced evidence tending to prove the fraudulent appropriation of other property than that alleged in the indictment to have been stolen, etc. It will be seen that he does not attempt to call this transaction with the Darnell cattle theft, but merely a fraudulent appropriation of other property. Now, we have no such offense, eo nomine, as fraudulent appropriation; but it occurs to us that if he meant theft, by this term, he should have further explained it to the jury. If this illegal testimony had not been admitted, the court would have been saved the trouble of endeavoring to find a place for it in the charge.

Appellant contends that the court, under the evidence in this case, should not have admitted the record of prosecutor's brand from Cottle County, inasmuch as the proof showed that the alleged stolen cattle, if taken by appellant, were taken in King County, and not in Cottle, and that said cattle ranged in King County, and not in Cottle County. And he furthermore contends that, if said testimony was admissible, the court should have instructed the jury with reference to its effect; insisting in this connection that said brand unrecorded in King County was not evidence of ownership of cattle that ranged or ran in said King County, but the same could only be regarded as a flesh mark. We understand appellant's contention, in effect, to be that under articles 4921, 4930, Revised Statutes, where a person owns cattle, some of which range in one county, and some of which have their range in another county, he is required to record his brand in each of said counties, in order to make same evidence of ownership. This is somewhat a novel question. In Atterberry v. State, 19 Texas Criminal Appeals, 401, it was said: "The statute says that the mark and brand of the owner of the cattle shall be recorded by the clerk of the county court where such cattle shall be, but this, as we understand it, relates entirely to the county in which he intends his cattle to range. True, he may record his mark and brand in as many counties as he may think necessary. This, however, does not require him to make a record in every county in the State, or in every county into which his cattle may stray. He shall record in the county of his range, and wherever else he may think necessary. When his cattle stray in other counties, he can use the record evidence of the mark and brand of the county of the range in the county wherever they are found, without recording his mark and brand in said county. The certificate from the county clerk's office where he is required to record is evidence that prosecutor, Thomas, lived in Throckmorton County, and that his cattle, which had been previously removed by him from Fannin County, ranged in Throckmorton County, and his brand was recorded there. The cattle were found in Denton County, and the testimony tended to show that they had strayed there from Throckmorton County, probably on their way back to their range in Fannin County." In Thompson v. State, 26 Texas Criminal Appeals, 466, the evidence showed that prosecutor lived in Callahan County; that his horses (some forty head) ranged in Callahan and Taylor counties, and at times in the northwestern portion of Coleman County. The brand was recorded in Taylor County, and prosecutor formerly lived in that county. The record of brands introduced in evidence was from Taylor County. The prosecution was in Coleman County. While the question of the record of said brand in the proper county was in that case, the court does not appear to have considered it. Article 4921, Revised Statutes, authorizes the owner of cattle, etc., to record his brand in the county where such cattle, etc., shall be; evidently intending that such record shall be made where the cattle range. Article 4930 says that no brands, except such as are recorded by the officers named in this chapter, shall be recognized in law as any evidence of ownership of the cattle, etc. Without this record, we understand that no brand can be introduced as evidence of ownership; but the brand, having been once recorded, by the terms of the statute is made evidence of ownership. If the brand has once been recorded in any county, there does not appear in the statute to be any limitation on the use of the same as evidence in any other county of the State. And, whatever confusion may be engendered, we are not disposed to ingraft by judicial construction any such limitation on the use of a recorded brand. We therefore hold that, the brand having been recorded in Cottle County, it could be introduced as evidence of ownership in King County.

There are other errors assigned, not necessary to be considered, as they are not likely to occur in another trial. In our view, appellant should have been granted a continuance to procure the absent witness on his defense of alibi. We would also observe that the charge given on principals was erroneous, in that it made defendant a principal, whether he was present at the time of the commission of the offense, and assisting therein, or not. This charge was not excepted to, but, in view of another trial, we refer to it. See Dawson v. State, 38 Tex. Crim. 50; Yates v. State (Texas Crim. App.), 42 S.W. Rep., 296; Bell v. State, 39 Tex.Crim. Rep.; Wright v. State, 40 Tex. Crim. 45; Sessions v. State, 37 Tex.Crim. Rep.. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.