Huffman v. State, 28 Tex. Ct. App. 174

28 Tex. Ct. App. 174 | Tex. App. | 1889

Willson, Judge.

We are unable to say, from the record, that any error was committed in admitting as evidence the extracts from the writ^ ten testimony of defendant taken on his preliminary examination before a magistrate. It is not made to appear by the bill of exception or otherwise that said testimony was not taken and authenticated in accordance with law. True, the bill of exception states that an objection made to said testimony was that said extracts were not authenticated, but the mere statement in a bill of exception, of an objection made to evidence does not establish that the ground of objection existed. It must be made to appear that the ground of objection in fact existed. Hennessy v. The State, 23 Texas Ct. App., 340.

Another objection made to this testimony was that a proper predicate was not laid for its introduction. This objection is not supported by the record. Defendant testified as a witness in his own behalf on the trial. His testimony was subject to the same tests as that of other witnesses. He was subject to be examined, cross-examined, and impeached in precisely the same mode as other witnesses. Whart. Crim. Ev., sec. 430. “He may be contradicted by proof of prior inconsistent statements, and this without previously questioning him as to such statements.” Id., sec. 433. See also Chambers v. The People, 105 Ill., 409; Gibbs v. Lindbury, 22 Mich., 479. It is usually requisite, however, to ask the witness whether he has not made such prior contradictory statement, specifying the person to whom the same was made and as far as possible the circumstances. And it is only upon a denial, direct or qualified, by the witness that he made such contradictory statements that proof of them can be made, and the contradictory statements must be as to matters material and relevant to the issue, and not as to mere collateral matters. Whart. Crim. Ev., sec. 483; Willson’s Crim. Stats., sec. 2513. In this case the defendant was asked about statements made by Mm on his preliminary examination before a magistrate; the statements were material and relevant to the issue; he qualifiedly denied having made such statements—that is, he said he did not remember making them, and did not think he had made them. We think a sufficient predicate was laid for the admission of the statements, and the court properly instructed the jury that said statements were not to be considered for any other purpose than as affecting the credibility of defendant as a witness in his own behalf.

It was not error to admit the testimony of the witness Milligan as to the joint ownership of defendant and one Morris of the mare in question. It was in proof that the mare was in the HOF brand, and Milligan’s testimony was that the defendant and Morris stated to him that they were jointly interested in that brand. There is other evidence in the case which tends strongly to show that Morris acted with defendant in the theft of the mare, and it is the theory of the prosecution that the theft was their joint act.

Several objections are urged by counsel for defendant to the charge of the court, none of which are in our opinion maintainable. It was proved that at the time the mare was taken by defendant she was running in the range in Wise County, where she had been accustomed to run for some time prior to the taking. She was therefore taken from her accustomed range, and was at the time of taking in the possession of her owner, and upon this issue the charge is correct.

We see no error in the charge as to defendant’s claim of right to take the mare. He claimed the right to take her under a power of attorney purporting to be executed by one E. Coker. The evidence tended strongly to show that said power of attorney was a sham or device concocted by defendant and Morris with a view to covering up the fraudulent taking, and that Morris, under the fictitious name of Coker, executed said power of attorney. Such being the evidence the charge of the court was applicable to the facts and correct in principle. Roberts v. The State, 17 Texas Ct. App., 82; Prator v. The State, 15 Texas Ct. App., 363; Shoefercater v. The State, 5 Texas Ct. App., 207.

The charge is not defective in failing to instruct as to the character of defendant’s possession of the mare, whether recent or remote. This issue was not in the case, because the defendant himself testified that he took the mare from the range in Wise County. Nor was it essential to charge as to circumstantial evidence, in view of defendant’s admission that he took the mare. Having given fully and correctly the law applicable to the facts proved, it was not error to refuse the several special instructions requested by defendant.

It was not error to receive the verdict on Sunday, and in the absence of defendant’s counsel, the defendant himself being present. Willson’s Crim. Stats., sec. 2399.

A new trial was properly refused. There is sufficient evidence to warrant the conviction. It was the conclusion of the jury that the power -of attorney relied upon by defendant was a mere sham, fabricated by himself and Morris to shield them in the commission of the theft, and this conclusion was, we think, justified by the evidence. As to the alleged newly discovered evidence, it is not made to appear that it, could not have been by the use of reasonable diligence found and produced on the trial.

The judgment is affirmed.

Affirmed.

Hurt, J., absent.