Appellant was convicted of the theft of cattle, and his punishmеnt assessed at three years in the penitentiary.
This is the third appеal. It was reversed November 20,1890, because there was no charge on alibi (15 Southwestern Reporter, 405); it was again reversed November 14, 1891, because the charge on alibi was not sufficient (30 Texas Criminal Appeals, 342); and it is again before us.
1. Appellant complаins that the court erred in permitting the witness Stokes to reproduce the testimony of P. F. Breeden, a deceased witness, who testified оn a former trial. We think there is nothing in the objection. The same testimоny of wagon tracks, and the finding of the meat in West’s and Bryant’s houses, werе testified to by three or four other witnesses, for the track was trailed by three witnesses, from the offal of the stolen animal to West’s house, the morning after the killing. Nor is it true that a witness must be able to testify to the substance of the entire testimony of a deceased witness in ordеr to be qualified to reproduce it; for, if so, you could always disqualify a witness by proving a forgetfulness of a part of the testimony. . If a witness can testify to the substance of all that is said on direct and cross-examination upon one subject, it will be admissible, though there may be other portions of said testimony, as to other matters, not remembered by the witness. 1 Greenl. Ev., sec. 165; Summons v. The State,
2. The court did not еrr in charging the jury that the animal running on the range is in the constructive pоssession of its owner. We are una
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ble to appreciatе the position that it is a charge on the weight of the testimony. Wherever running, whether on its range or not, unless in the actual possession оr control of another, the animal is in the constructive possеssion of its owner. The fact that it was on or off the range is wholly immaterial. If a charge on the weight, it is harmless. As said in the Bishop case,
3. The court did not err in failing tо tell the jury that this was a case wholly of circumstantial evidence. The evidence was direct and positive as to appеllant’s guilt, as testified to by an eye-witness, and if the shooting was not seen, the facts were in such close juxtaposition to the shooting as tо be equivalent to direct testimony. The charge as given was sufficient.
4. The court did not err in refusing to charge on possession of reсently stolen property. There was no explanation given of the possession. It was not the only circumstance relied upоn by the State in proving the guilt of appellant. In the case at bar the appellant and his confederate were seen butсhering the animal, and on investigation were found to have knockеd off and hid the horns, and cut out the marks and brands, and cut the hide into fragmеnts and hid them. The decisions cited by appellant’s counsel havе no application.
5. We think the testimony fully supports the verdict оf the jury. The charge was fair and full, and we find no reversible error. The only question on the facts is that raised by alibi defense. Three juries havе passed upon that defense, and found it not true, and we are satisfied that the verdict is correct.
The judgment is affirmed.
Affirmed.
Hurt, P. J., concurs. Davidson, J., absent.