Johnson v. State

PRENDERGAST, P. J.

Appellant was convicted of the theft of a. mule, and his punishment fixed at the lowest prescribed by law.

The indictment charges that the offense was committed in Taylor county, Tex. The jury evidently believed the testimony by the state to the effect that, whether the actual original taking was in Taylor or Fisher county, the appellant carried the stolen mule into Taylor county. Our statute (article 245, C. C. P.) expressly provides that, where property is stolen in one county and carried by the offender to another, he may be prosecuted in either. Article 257 provides that the indictment may allege that the offense was committed in the county where the prosecution was carried on, and to sustain the allegation of venue it shall only be necessary to prove that by reason of the facts existing in the case the county where such prosecution is carried on has jurisdiction.

Appellant attempted to raise the question of venue in this case for the first time in his motion for a new trial. He has no bill of exceptions whatever on the question. Our statute (article 938, C. C. P.) expressly requires that this court shall presume that the venue was proven in the court below, unless such question was made an issue in the court below and it affirmatively appears to the contrary by a bill of exceptions properly signed and allowed by the judge of the court below.

This court has repeatedly held that the question of venue cannot be first raised by the motion for new trial, nor by a requested charge. Scott v. State, 42 Tex. Cr. R. 607, 62 S. W. 419; McGlasson v. State, 38 Tex. Cr. R. 351, 43 S. W. 93; Barker v. State, 47 S. W. 980; Washington v. State, 77 S. W. 810; Brantley v. State, 42 Tex. Cr. R. 296, 59 S. W. 892; Munger v. State, 57 Tex. Cr. R. 384, 122 S. W. 874; Wynne v. State, 41 Tex. Cr. R. 504, 55 S. W. 837.

Venue does not have to be proven beyond' a reasonable doubt If from the facts in evidence the jury may reasonably conclude that the offense was committed in the county alleged, it is sufficient.

The state introduced positive testimony, if believed, which showed that appellant stole the mule and carried it into Taylor county. In other words, the testimony of his guilt was not dependent purely upon circumstantial evidence. When such is the case, a charge on circumstantial evidence is not required, and should not be given. Section 813, White’s Aim. O. O. P.

A very material question in this case was as to the whereabouts of appellant Wednesday night and Thursday morning. John Baird, an accomplice, who testified for the state, by his testimony showed that he and appellant left appellant’s house early Wednesday night; that appellant went to a pasture and caught said alleged stolen mule, and they together, that night, in appellant’s buggy, drawn by Baird’s horse, took the mule to Abilene, in Taylor county, reaching there early the next morning before or about daylight; that appellant left Abilene soon after they reached there, leaving him to sell the mule, which he did or attempted to do; and that appellant took his (Baird’s) horse and the buggy at Abilene and returned to his home some 30 to 40 miles distant from Abilene, reaching there 'Thursday evening. Besides this, the state introduced other testimony showing that appellant was seen coming from the direction of Abilene some 15 miles from his residence, going towards his residence, driving this horse and buggy, and that he reached his home with said horse and buggy Thursday evening and turned the horse in his lot or pasture. It became quite a material question in the case where appellant was Wednesday night, and where he was and. went Thursday morning. Appellant introduced his wife as a witness for him, who testified that he was at home all night Wednesday night and that he left home early the next morning, about 7 o’clock, and at the time he left told her where he was going, and that was to Bush to see Mr. Derrington. On cross-examination, over appellant’s objection, the state was permitted to ask her if she had not told Mr. Owens about the middle of the morning Thursday morning that her husband and said Baird had gone to Mulberry Canyon that morning, and not to Bush, where she had just testified her husband said he was going. She denied making any such statement to Owens. The court then permitted the state to introduce Owens, who testified that at said place and time she told him that her husband and Baird had gone to Mulberry Canyon that morning. Appellant’s objections, in effect, were that he had not on direct examination brought this out, and it was irrelevant and immaterial, and by it the state sought to impeach her; and the wife could not be used as a witness against him, or cross-examined on something not brought out by him in his direct examination. The statute and rule are that incriminating new matter against the husband cannot be brought out in cross-examination of the wife by the state. But certainly that does not, and has never been held to, prevent any legitimate cross-examination of the wife which contradicts or tends.to contradict or impeach her testimony in chief. As stated above, where appellant was Wednesday night and was and went Thursday morning, was very material. She testified for her husband, as stated above. Then whether or not he was at home and left there early Thursday morning to go to Bush, and that he so stated to her at the time, was material. That she, when first seen that morning, told Mr. Owens that her husband and John Baird had gone to Mulberry Canyon, which she denied telling him, was a material contradiction and impeachment of her testimony, and was admissible. The court, at the time the question was asked her by the state and her testimony given, expressly limited it to impeachment of her, and so he did when Owens’ testimony was given. In addition to this, in charging the jury, he so expressly limited the jury to the consideration of it for that purpose alone. Swanney v. State, 146 S. W. 549; Dobbs v, State, 54 Tex. Cr. R. 554, 113 S. W. 923; Exon v. State, 33 Tex. Cr. R. 468, 26 S. W. 1088; Creamer v. State, 34 Tex. 173; Buchanan v. State, 41 Tex. Cr. R. 127, 52 S. W. 769; Hampton v. State, 45 Tex. 154; Shelton v. State, 34 Tex. 662; Magruder v. State, 35 Tex. Cr. R. 214, 33 S. W. 233; Brown v. State, 61 Tex. Cr. R. 336, 136 S. W. 265; Reagan v. State, 157 S. W. 484; Grimes v. State, 160 S. W. 690, not yet officially reported.

The court’s charge on alibi in appellant’s favor is in the language that has many times been passed upon and approved by this court.

While we have not taken up each of appellant’s grounds in his motion for new trial, all questions raised thereby are embraced in this opinion. In addition to the, testimony of the accomplice, which, if believed, was amply sufficient to sustain the conviction, he is otherwise supported and corroborated by many facts and circumstances proved by other witnesses.

The judgment will be affirmed.