Lead Opinion
Cоnviction is for cattle theft. Punishment, two years in the penitentiary.
Appellant and Charley Jackson (owner of the alleged stolen animal), are both negroes living in the same community. Jackson bought a cow with a calf about a month and a half old. He kept the calf for more than a year, marking it with two splits in each ear. It disappeared and was gone some six months when it came back to Jackson’s premises. It was then apparently marked with one split in the left ear and half overcrop in the right. This wаs appellant’s mark and he claimed the animal as his property asserting that he had raised it. It is not necessary to set out the evidence pro and con relative to identity of the animal. State’s witnesses testified that the scars of the original marks were discernible, and explained in detail the appearance of the ears showing where they had been remarked. These were all disputed issues of fact going to establish ownership. The jury was not without evidence to warrant their finding that the animal bеlonged to Jackson.
We think the court committed no error in refusing the special charges. Where applicable the issues were sufficiently covered by the main сharge. Neither do we find basis for the complaint that the charge given was erroneous in limiting the defense to appellant’s claim of ownership. The evidence made no other issue.
While the prosecuting attorney was making his closing argument he used the following language:
“Gentlemen of the Jury: If there is a member of this jury who is a member of any sеct, organization or clan whose purposes and designs are the more rigid enforcement of the criminal laws of this State, and who believes that the criminal laws have not been and are not being enforced as they should be, you have an opportunity *358 in this case to demonstrate your sincerity to the teaching and doctrine of suсh organization.”
Objection was made to the remark. The bill certifies that no evidence was in the record justifying such a reference, and that appellant’s attorney had said nothing in his argument provoking such language. As soon as the language was used the bill shows that ‘1 the court then and there stopped Mr. Casey, reprimanded him for using such remarks and language before the jury in very positive language and further instructed the jury, at the request of the defendant, not to consider such remarks in determining their verdict and in no way to be influеnced by them; and the assistant county attorney closed the discussion and took his seat.” We think in view of the prompt action of the learned trial judge the matter presents no reversible error; especially is this true in the absence of a showing that there were any members of the jury to whom the language might have been of peculiar significance. The facts justified a verdict of guilty and only the minimum punishment was assessed.
The judgment must be affirmed and it is so ordered.
Affirmed.
Addendum
on rehearing.
November 28, 1923.
Upon more mature consideration of this case in the light of the motion for rehearing we hаve concluded that our former opinion may have been erroneous. About an equal number of witnesses testified that the yearling in question belonged to appellant, as did those for the State, that it belonged to prosecuting witness. It appears from the record that after prosecuting witness spoke to appellant about the marks on the animal appellant came to the cow-pen of prosecuting witness and claimed the animal as his; also that he filed a complaint agаinst said prosecuting witness for theft of same. Appellant testified that he owned the cow which was the mother of the yearling in question and that he milked her from the time it was born until it wаs about a year old; that he marked it and turned it out and that it ran in a field very near to the home of prosecuting witness from that time until it was taken up. Appellant’s brother sworе that he had been knowing the yearling in question since it was born and that it belonged to appellant. James Murray swore that he knew the cattlé of appellant and that thе yearling in question belonged to appellant. He had known appellant’s cattle for a long time. Appellant’s father swore that he had known this yearling ever sincе it was born and that it belonged to appellant. That there was bad blood between the two men, appellant and prosecuting witness, is also admitted. They had had a сutting and shooting scrape some years
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before the loss of the animal in question, and had not spoken to each other during the interim, though they lived comparatively nеar to each other. The case on its facts is very similar to Moran v. State,
Reversed and remanded.
Addendum
ON REHEARING.
January 16, 1924.
When the argument does not offend аgainst some provision of the Constitution such as that declaring that the accused shall be confronted with witnesses against him, or some statute such as that forbidding the comment uрon the failure of the accused to testify in his own behalf, this court feels impelled to look to the facts in evidence and the verdict rendered as well as the remarks of counsel of which complaint is made. Thus, in a case where the facts are conclusive of guilt, or where the State’s case is very strong and the mitigating evidencе meagre, and the punish
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ment assessed is obviously referable to the evidence rather than to the argument, this court might not feel called upon to order a reversаl of the conviction because of an improper argument. The same argument, however, made in a case in which the question of guilt or innocence is nicely bаlanced or where the punishment is apparently out of proportion to the facts proved, the inference of injury might be deduced and a new trial demanded. The case of Bennett v. State,
Overruled.