Riley v. State , 93 Tex. Crim. 657 ( 1923 )

Appellant was convicted in the County Court of Erath County of misdemeanor theft, and his punishment fixed at a fine of $50 and confinement in the county jail for thirty days.

Appellant was charged with the theft of some fowls from a Mrs. James. It was not erroneous to permit the daughter of Mrs. James to testify that her mother did not give appellant her consent to the taking of said fowls. This witness testified that the chickens were bought the day before the night when they were taken; that she saw them go to roost, and that she spent the night with her mother that night. Her testimony that she knew that her mother did not give her consent to such taking, was not necessarily hearsay or the opinion of the witness, but may have been based wholly and entirely upon facts known to said witness. The tracks of a truck and of two human beings in the vicinity of the home of Mrs. James, were seen and testified to. The morning following the night of the loss of the fowls, appellant and a companion were found in possession of a truck whose tracks were similar to those seen in the neighborhood of Mrs. James' home, and in said truck were the chickens and turkeys which were identified by the daughter of Mrs. James as those taken from her mother. Appellant had claimed the chickens as his to another witness who had seen and tried to buy them. There is a bill of exceptions to the testimony of the sheriff to the effect that the alleged stolen property was identified by Miss James, and, that before she saw same she described it to him. Mr. Branch cites many authorities in Section 2482 of his Annotated P.C., supporting the proposition that when the identity of the alleged stolen property is not disputed in the testimony, the admission of evidence such as that here complained of, does not call for a reversal. The property in question was identified by the two daughters of Mrs. James beyond any question, and there is no dispute of the fact of identity. West v. State, 31 Tex. Crim. 251.

That the number of jurors in the box, in a County Court case or a District Court case, may be reduced by excuses to less than six in the one instance or less than twelve in the other, and the court refuse to fill the panel before requiring the parties to pass on the jurors in the box, presents no reversible error. Speiden v. State, 3 Texas Crim. App., 156; West v. State, 7 Texas Crim. App., 150; Logan v. State, 55 Tex.Crim. Rep.. The case of Hurt v. State, 101 S.W. Rep., 806, cited by appellant, is upon an entirely different proposition. The cases above cited and others make it evident that it was not error for the trial court in this case, the number of jurors appearing in the box being only three, to require the appellant to pass upon these three before filling the panel. After accepting said three jurors, appellant could not be heard to complain that thereafter other jurors whom he thought to be more favorable, were brought in and he was denied the privilege of using a challenge upon one of the three original jurors, all of whom had been accepted by him. Appellant complains in his motion for new trial that one of the original three jurors, who was foreman of the jury that tried him, was objectionable. No ground of objection is stated, nor is any reason made to appear why appellant did not use a peremptory challenge upon said juror when he passed upon the question of taking the three men who were present in the box.

Finding no error in the record, the judgment of the trial court will be affirmed.

Affirmed.

ON REHEARING. March 21, 1923.