Hammock v. State , 49 Tex. Crim. 471 ( 1906 )

Appellant was convicted of the theft of a horse, and his punishment fixed at confinement in the penitentiary for a term of seven years; and appeals.

Appellant excepted to some testimony introduced by the State, which he insists showed that appellant had ben a county convict, contending that inasmuch as appellant had not been placed on the stand as a witness, that this matter could not be shown. We have examined the bills which he insists show this, and we fail to discover that the bills show appellant was an ex-county convict. Certainly no offense is stated of which appellant had been convicted, and he might have been working at the camp, as stated by one of the witnesses, in some other capacity than as a county convict. Besides it was a question as to the identity of appellant, and how these witnesses came to know him. They merely stated in general terms that they themselves were working at the camp, guarding convicts, and while there knew the appellant. We do not believe the action of the court in this regard was error

Nor do we believe that the court committed an error in permitting witness Markham to refresh his memory as to the date of the alleged offense by referring to the date of a note, which date he said was December 20th. Appellant attempts to show by the bill that witness refreshed his memory by a phone message, which gave him the date of the note. However, the bill does not make this clear. An examination of this witness' testimony, as shown in the bill, we think makes it clear that he knew the date of the alleged theft aside from the date of said note. Besides, the bill itself does not show how this matter became material. More than this the date of the alleged theft is made certain by a great number of witnesses, and we do not regard this matter as material.

We do not think the matter as to the bridle and appellant's possession thereof, has anything to do with this case. The evidence does not show any theft of the bridle. On the contrary it shows that he borrowed this bridle. We do not believe it was necessary for the court to instruct the jury with reference thereto.

Appellant says that the charge of the court as to the testimony regarding a contemporaneous theft of the saddle was erroneous, in that it was a charge upon the weight of the evidence. We think the testimony sufficiently shows that the theft of said saddle was contemporaneous with the theft of the horse, and was not controverted; and the charge as to the saddle directed the jury's attention to the fact that they could only use said testimony concerning the theft of said saddle, if they used it at all, in judging of the intent of appellant as to the theft of the horse charged against him. The charge is not like that in Stull v. State, 84 S.W. Rep., 1059, as will be seen by an inspection of that charge.

We find no error in the court's charge with reference to the punishment. There being no reversible error in the record, the judgment is affirmed.

Affirmed.