Saddler v. State

White, Presiding Judge.

This is a companion case to Jackson. v. The State, decided at the present term with a reversal of the judgment. [Ante, p. 190.) The parties were jointly indicted for theft of the gun. In the Jackson case he was never seen in possession of the gun, and the law upon that aspect of the case was not sufficiently explained to the jury, nor was any instruction given them relative to crime dependent for proof upon circumstantial evidence. In this case the charge of the court cures the defects pointed out in the charge in the former case in all the essential particulars. Saddler, this appellant, was seen in possession of the gun just after it was taken, and he had possession, and it was recovered from his possession by the owner, some four hours afterwards. There is, therefore, a material and plainly marked distinction between the attitude of the parties with reference to the theft.

Bdls of exception were reserved to the rulings of the court upon the admissibility of evidence. With regard to the proofs admitted as to the value of the gun, and in the charge of the court- upon that question, we see no error. “ Any evidence from which the jury can infer the value of a stolen chattel is evidence; as, for instance, what tiie owner testifies of its value to him; the opinions of witnesses acquainted with the value of like property; what such property has brought at actual sales,” etc. • “It is the duty of the court to charge upon the standard of value, which is the market value of the article if it have such value, and, if not, the amount it would cost to replace it.” (Martinez v. The State, 16 Texas Ct. App., 122.)

In this as in Jackson’s case the witness Myers was permitted to testify that he informed Beeves, the owner of the gun, as to his “.suspicions ” with regard to two parties he had seen in the field near the place from which the gun was taken. This testimony, it is true, was inadmissible. But the question is, was it of a material character and prejudicial to defendant’s interests? Here the party was pursued and the stolen gun actually found in his possession. Could the statements by Myers of his “ suspicions ” have any appreciable weight upon the question of his guilt? We think not. His suspicions were neither important, material or pertinent to the issue, when considered in the light of the other facts in this case. We do not dispute the settled rule that “ the admission of illegal evidence of an important fact material and pertinent to the issue,. and which is additional to other facts legally in evidence, is erroneous, and that a conviction in such case will not be permitted to stand, however certain it may be that the jury would have found a verdict of guilty upon other sufficient evidence adduced on the trial.” (Mc Williams v. The State, 44 Texas, 116.) But in this case the rule does not apply, because in the light of the facts the illegal evidence was neither important, material nor pertinent, and the error of its admission was error without prejudice, which is not reversible error.

[Opinion delivered January 27, 1886.]

The record discloses no error for which the judgment should be reversed, and it is therefore affirmed.

Affirmed.