34 S.W. 925 | Tex. Crim. App. | 1896
Appellant was charged with and convicted of stealing one head of cattle, the property of an unknown owner. The appellant's contentions for a reversal grow out of the supposed insufficiency of the evidence to support the verdict of the jury. There tire no assignments of error in the record, and we are relegated to his motion for a new trial to ascertain his views on these questions. With reference to the contention that the venue was not sufficiently proved, the testimony shows, by circumstances and by the testimony of Perryman, that the killing of the animal was in Liberty County. The facts bearing upon this question need no discussion at our hands, and they show not only, with reasonable certainty, that the killing was in Liberty County, but place it, its we understand the testimony, beyond any question of reasonable doubt. It is contended by the appellant, also, that the testimony is insufficient to sustain this judgment, because, on the trial, the diligence exercised toy the grand jury in seeking information as to the name of the owner of the stolen animal was not shown before the jury who tried this is case. This court has held, and still holds, that where the property is alleged to be in an unknown owner, and, during the trial of the case, the testimony suggests, that the owner could have been known to the grand jury by reasonable investigation, and that investigation was not had, this would constitute a cause for reversal of the judgment on the ground of variance. We do not care to review those authorities. They are familiar to the profession. But this case does not come within the rule contended for by the appellant. There was no question in this case that the allegation of ownership was not properly laid. There is nothing to suggest that, by any possible investigation, the grand jury could have ascertained to whom the animal belonged; awl not only did the witnesses testify as to a want of knowledge of the owner of the animal, but the defendant, in making his statement in regard to it, stated that he did not know to whom the animal belonged. If there had been a question, on the trial, *3 that the owner of the animal might have been known, and, by proper inquiry, the grand jury could have ascertained that fact, then a failure on their part to do so would have constituted reversible error. Such is not this case, and that phase of the law was not an issue on the trial; and, in this respect, the testimony does support the conviction. The fact that it was proved, on the trial of this case, that the owner was unknown, in the absence of any issue on this question by the defendant, or the evidence, was sufficient to establish a prima facie case that the ownership was unknown to the grand jury, and that they exercised sufficient diligence to ascertain the owner. The court charged the jury that, if such diligence was not exercised, they should acquit. This was correct. With reference to the confession of the defendant, and the supposed error in admitting it, we would say that, where a party desires a revision of supposed erroneous rulings of the court in regard to the admission of testimony, it is necessary to reserve a bill of exceptions. This was not done. We have investigated the evidence in the case. We think the defendant's confession of the fact that he stole the animal at the instance of and by the persuasion of one Oliver, and the finding of the meat in his house, and the fact that he was seen going from the place where the animal was slaughtered with one-half of it in his possession freshly killed, fully supports the verdict. The judgment is affirmed.
Affirmed.
