32 S.W. 530 | Tex. Crim. App. | 1895
Appellant was convicted of the theft of two cows, and prosecutes this appeal. If it be conceded that his first bill of exceptions is sufficiently specific to show that the court erased a portion of his charge, it does not set forth the clause or clauses erased. But, if it did this, it does not show that such erasure took place after the charge was read to the jury and filed in the cause, and the court's qualification of the bill makes it appear that the erasure occurred before it was read to the jury. This being true, there was clearly no error. Boothe v. State, 4 Texas Crim. App., 202; Baker v. State, 7 Texas Crim. App., 612. It is unnecessary to discuss the effect the court's action would *116 have had, if the erasure had occurred after the charge had been delivered to the jury. The witness West was not an accomplice, under the facts before us. The court, therefore, did not err in failing to instruct the jury in regard to the law applicable to such testimony. One of the stolen cows was turned over to West, in lieu of two yearlings purchased by him of Dock Lawrence, without knowledge on his part that the cattle had been stolen. This is the uncontradicted testimony in the record. The evidence does not indicate or intimate that appellant took the cattle under a mistake, or that he believed he had a right to take them. The testimony is uncontradicted that he knew the cattle belonged to Smith, the alleged owner; that prior to the theft Smith proposed to put his brand upon the cattle taken, and appellant urged him not to do so, and stated to Smith that he knew the cattle better than Smith, and that he would protect him in his possession and ownership of the same. Appellant had bought other cattle having the same brand as the cattle in question, and it seems the entire brand of cattle, except the two animals mentioned in the indictment. The judgment is affirmed.
Affirmed.