72 S.W. 193 | Tex. Crim. App. | 1903
Lead Opinion
This conviction was for horse theft, the penalty being three years in the penitentiary.
The witness George Perry was permitted to testify to facts criminative in their nature, after both sides had closed their testimony; the *518 objection urged being that it was not in rebuttal. The court explains the bill by stating that when the cause was called for trial State's counsel informed the court that the old negro, George Perry, was absent in Bosque County, sick, and perhaps unable to attend court. The court informed counsel that, if his presence could be procured before the close of the case, he would be permitted to testify, and as soon as the witness came in he was used as a witness. When necessary to the administration of justice, testimony may be admitted for either side before the conclusion of the argument. The statute authorizing this has been upheld by an unbroken line of decisions. Briefly stated, the evidence disclosed that appellant was a convict upon the county farm, and made his escape. During that night the horse in question was taken from the lot where placed by the owner, carried out through the field, and was ridden into Bosque County by appellant. Another county convict escaped at the same time — a negro, going under the euphonious name of "Black and Shine." Appellant claims that "Black and Shine" informed him that he had a friend from whom he could borrow a horse, on which they could ride out of the county; that "Black and Shine" disappeared, and came back with a horse, and they went together some distance, and parted company, appellant riding the horse into Bosque County, to the house of a friend, and the next day turned him into a pasture, with instructions that he be returned to the alleged owner, or the father of the alleged owner. The evidence further discloses that "Black and Shine" wore a very large shoe; that appellant wore about a No. 6 or 7; and that the track of the man who took the horse from the lot, and led him through the field, was a No. 6 or 7. Appellant also claimed that he simply rode the horse for the purpose of making his escape, with the intent to return or have him returned to the owner; in other words, that he was simply stealing a ride, and not the horse.
Various objections are urged to the charge of the court, especially that portion of it which informs the jury, if they should believe from the evidence that another person borrowed the horse in question from the owner, and placed it in possession of defendant, or if they entertained a reasonable doubt whether defendant's connection with the horse arose in this manner, they should acquit. This is objected to because it limited the jury to the consideration of appellant's belief of the fact. This was rather favorable to defendant, because it was not a fact that the horse was borrowed by the negro "Black and Shine," and the court would have erred if he had confined the jury to a belief on their part that the fact did exist. The court was, therefore, correct in instructing the jury, if defendant received the horse under the belief that it was borrowed by "Black and Shine," he would not be guilty of theft. This was appellant's contention. This was his statement, and the issue was submitted upon the defendant's statement, as one of his theories.
The court also instructed the jury to the effect that, if defendant took the horse, and did so with the intention not to deprive the owner of the value of it, but simply to ride to Bosque County, or there was a reasonable *519 doubt of that proposition, they would acquit. This was another contention of appellant, made so by his own testimony; and the court clearly submits it favorably to defendant.
We have carefully examined this record, and do not believe there was any error committed. Every issue presented by the testimony, as we understand the facts, was clearly, pertinently, and even favorably submitted by the charge. While appellant raised the question of the horse having been gotten by "Black and Shine," so that he and "Black and Shine" might ride away from the officers; and the further theory that he took the horse for the purpose of riding to Bosque County to elude the officers — yet the other facts do not sustain this.
The judgment is affirmed.
Affirmed.
Addendum
At a former day of this term the judgment herein was affirmed. It is now contended the court committed error in failing to apply the law to the issue of ownership, and that this is apparent of record, and fundamental in its nature, which would require a reversal. This might be answered by the decisions construing article 723, Code of Criminal Procedure, to the effect that it is too late to suggest such error for the first time on appeal. It should have been taken advantage of by bill of exceptions or in motion for new trial in the court below. But, independent of these decisions and of this article, we do not believe there is any merit in the question suggested. This matter comes in this way: The indictment alleged the ownership to be in Savie Richardson and John Richardson. The evidence discloses that there were two parties, father and son, by the name of Savie Richardson. The contention is that, where such is the case, the law would presume the ownership to be in the father, and not the son. If this be correct, it is but a presumption which could be overcome by proof. The word "Junior," or "Jr.," or words of similar import, are ordinarily mere matters of description, and form no part of a person's legal name, and to omit or add such appellation or cognomen is harmless error, both in civil and criminal proceeding. Geraghty v. State,
The only remaining question urged on rehearing is the supposed insufficiency of the evidence. There were several theories advanced by appellant in reference to his taking the horse to ride away from the officers and escape further serving his time on the county farm in obedience to the judgment of the court punishing him for a misdemeanor. However, there is evidence refuting these theories, and showing a fraudulent taking. Under this state of facts or condition of the record, this court would not be authorized in disturbing the verdict.
The motion for rehearing is overruled.
Motion overruled.