Bain v. State

Appellant was convicted of theft of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years. This is the second appeal. See 7 Texas Ct. Rep., 899.

Appellant complains of the refusal of the court to exclude the testimony of B.W. Simpson and J.H. Hodges. The testimony of these witnesses as disclosed in this record is substantially the same as stated in the original opinion on the first appeal of this case. Appellant urges the same objections here. In the former appeal we held this testimony was admissible because it did not show appellant was under arrest. Through inadvertence in writing the former opinion we placed in juxtaposition to the statement of the conversation that occurred between the sheriff and Simpson and appellant this statement: "Appellant stated that when he started on the call of the sheriff from the house to the gate, he thought the sheriff had come to arrest him on account of a difficulty, or as he terms it, a ``feud,' that had occurred at his house a few days previously, as he had been threatened with arrest on this account, thus excluding the idea that he was anticipating any trouble with reference to the cow. He attributes his excitement to fear of arrest for the difficulty." This statement should not have been coupled the witnesses and appellant; and we did not intend to be understood as holding, as appellant's counsel now insist, that the fact that appellant apprehended arrest for another offense, than the one he is now being prosecuted for, would authorize the introduction of the testimony; but what we intended to hold was that the facts as disclosed by with the recital of the facts leading up to the conversation between the bill of exceptions did not show that appellant was under arrest, or thought himself under arrest, at the time of the conversation detailed by said witnesses. In placing the statement as above, we were merely stating appellant's insistence. If he was anticipating arrest for another and different offense than the one he was arrested for, this per se would not preclude the conclusion that he was under arrest at the time of the conversation detailed by the witneses. If he was under arrest, or thought or believed he was under arrest, under the authorities, the statement would not be admissible. But the facts preclude either of these conclusions, and show he was not only not under arrest, but that he did not think he was under arrest. In Connell v. State, 75 S.W. Rep., —, 45 Tex.Crim. Rep., we held that the appellant in that case was not under arrest, under circumstances much like those now under consideration. Mere purpose on the part of an officer to arrest a party, where the purpose has not been carried into effect by an actual arrest, will not render the confession made by the party to the officer incompetent or inadmissible as evidence. Or where the evidence clearly shows, as it does in this case, that appellant did not think himself under arrest, the statement would be admissible. Holmes v. State, 32 Texas Crim. App., 361. Accordingly we hold the testimony of these witnesses was admissible, and the court did not err in admitting it.

Appellant also insists in the above bills that the court erred in permitting Hodges and Simpson to testify that, at the time they approached the house and begun the conversation with defendant, defendant held to the wire over the gate, and was trembling badly, and seemed that he was about to fall; his knees were trembling and shaking, scarcely able to stand, and he turned very pale. Appellant objects to this portion of the statement on the ground that it is a conclusion of the witnesses. We take it that this is a short-hand rendering of the facts, and was properly admitted.

Appellant insists that the court erred in refusing the following special charges, to wit: "The court charges the jury, if they believe from the evidence that defendant was under arrest, or thought himself to be under arrest by sheriff Hodges, when Hodges and Simpson went to his house and had the conversation with defendant as testified by them, you will disregard and not consider any statement made by defendant to them which appears in evidence." It follows from what has been said above that it was not error to refuse this charge, since the evidence clearly shows appellant was not under arrest; nor does the evidence raise any issue on this question. The facts show conclusively that appellant was not under arrest.

And the court also refused this instruction: "The jury will not consider as evidence showing defendant's guilt as to the animal alleged, any testimony as to defendant's killing any other animal; but such testimony will only be considered by you for the purpose for which it was introduced, i.e., as bearing or not on the question of the intent of defendant with which he killed the animal in question; and you will consider it for no other purpose." There was no error in the refusal of this charge. The court properly presented appellant's defense, if the animal in question was the animal appellant claimed, to wit, the Bain cow, or if they had a reasonable doubt as to whether it was the Bain cow to acquit appellant. This was as favorable to appellant as he could ask.

Appellant also objects to the form of the verdict of the jury, which is as follows: "We the jewors fined the defindet guilty and assess his penish in the Penerty for two year. Steve. Daffern, Foreman." It has been held that bad spelling will not vitiate the verdict of the jury. The verdict, in our opinion, when construed in the light of the record, is readily comprehended and understood. It would not mean otherwise than that the jury found defendant guilty and assessed his punishment at two years confinement in the State penitentiary. As appellant insists, words in the verdict are misspelled; but the clear legal intendment and purpose is made manifest. McGee v. State, 45 S.W. Rep., 709. The proper judgment was entered, confining appellant in the penitentiary for a term of two years.

No error appearing in the record requiring a reversal, the judgment is affirmed.

Affirmed.