Bailey v. State

• Decision Date: 09 November 1906
• Citation: 97 S.W. 694
• Parties: BAILEY v. STATE.
• Court: Texas Court of Criminal Appeals

97 S.W. 694

BAILEY v. STATE.

Court of Criminal Appeals of Texas.

November 9, 1906.

Appeal from District Court, Hill County; W. C. Wear, Judge.

W. E. Bailey was convicted of cattle theft, and he appeals. Reversed and remanded.

L. C. Hill and C. F. Greenwood, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of cattle theft, and his punishment assessed at two years' confinement in the penitentiary.

This case depends on circumstantial evidence. The proof on the part of the state shows that prosecutor, S. C. Fain, had a farm in the country, some six or seven miles from Hillsboro. His tenant, Mitchell, lived on said farm, having rented the same for the year. Prosecutor spent a good deal of his time on the farm with his tenant. Appellant lived some half mile from said farm and pursued the business of a butcher; that is, he would buy cattle in the neighborhood, butcher them, and sell the beef to the neighbors. The animal in question had been bought by prosecutor from a neighbor, some six or eight months prior to the alleged theft, placed in the inclosure on the farm, and had broken out several times and gone back where it was raised. Prosecutor finally got it up, put it in the little pasture of about 10 acres. The state's evidence shows that it was taken from there at night; that is, prosecutor says he saw it in the pasture a day or two before it was missed. As soon as the same was missed, search was made, and he went to the premises of appellant, there inquired about the animal, asked to look at the hides he had recently butchered. Appellant informed him that he had sold the hides, but he could show him the heads. Prosecutor went with appellant, and, among a number of others, selected a head which he claimed was the head of his animal. He talked with appellant for some time, and accused him of the theft of his animal. Appellant denied this, but stated he would pay him for the animal to save trouble. The crucial testimony on the part of the state was the identification of the head of the animal by prosecutor and Mitchell. Appellant did not go on the stand himself, but proved by witnesses that it was impossible to identify the animal by its head and horns alone. It was further in evidence that, when appellant was charged with the theft of the head of the particular animal, which prosecutor claimed to have identified, appellant stated he had bought the animal from which the head was taken, from Huffhines, who lived in the neighborhood. The proof showed that the animal Huffhines had sold to appellant, which was recently before the theft, was a steer yearling, something more than a year old, while the animal prosecutor claims was stolen, was a heifer yearling, some two years old. There was evidence pro and con as to the character of horns of such animals. The state's evidence tends to show that the horns of a steer yearling are thicker and blunter than those of a heifer yearling, which would be sharper. This is a sufficient statement of the case to discuss the questions raised on the trial.

There are no separate bills of exception to the introduction of testimony. However, there are some exceptions taken, in connection with the statement of facts. As usual with this character of exceptions, it is difficult to determine whether they are taken in such manner as to require a review. We note that appellant in his brief argues an exception taken to the testimony of the prosecutor. The statement of facts, as we find it in the record, shows this bill to come up in this wise: After prosecutor found the head at appellant's butcher pen, he was asked to tell the conversation that ensued between him and appellant in regard to said yearling. Defendant objected to this, on the ground that the same was hearsay, was witness' opinion, and involved statements made by prosecutor to appellant that was in the nature of a moral lecture, and not pertinent to any issue in the case but injurious to appellant. The court admitted some of the statements made between prosecutor and appellant, but excluded some of his statements. For instance, as we cull from this statement of facts, the witness was asked to tell what he and appellant talked about. He answered: "I hated very bad to think he had treated me in that way after I had helped him along, as I had so stated to him, and reprimanded him very severely, but as his father would do for his own good." This particular part of his testimony was excluded. The witness was then permitted to state, on an interrogation by the court, as follows: "Defendant said he did not do it. He said, `I did not do it. And I think I can convince you that I have not done it.' I said, `Well, if you are guilty and did do such a thing like that I did not know what ought to be done with you.' I may have used rougher language than that. He said, `No, he had not,' and he never objected to showing me the head. I said, `Although I know it is not patriotic, nor showing me a good citizen, but if you will pay me for the heifer, for the sake of your children—I know the little fellow—your father and mother live by, I will face the law and let it go.' That he further stated to him why he would let him go—he had been off on a spree at Waco." This last part of the witness' answer, however, seems to have been excluded. So far as we are advised from this sort of statement, assumed to be a bill of exceptions, we see no objection to the testimony admitted by the court. It was perfectly competent for the state to prove by prosecutor, or any other witness who was present, what appellant said when he was accused of the offense—he not then being under arrest—and any portion of the conversation that prosecutor may have used in order to make the conversation or statements of appellant intelligible. Of course, a moral lecture or mere statements of prosecutor not necessary to explain and make intelligible the statements of appellant would not be admissible. However, we see nothing here of an injurious character. We again repeat, what we have heretofore said, that we will not wander through the entire record to find appellant's bill of exceptions. Here the record is not even indexed, and when we find, scattered over several pages, what is claimed to be a bill of exceptions, we can scarcely tell what was excepted to. We earnestly recommend that bills of exception be taken separately and shaped so that they will present the exact point in issue.

Appellant raises the question of variance between the allegation of possession and ownership in the indictment and the proof. The allegation in the indictment is that the animal was taken from the possession of S. C. Fain. Appellant maintains that the proof shows, if the animal was taken at all, it was taken from the possession of Will Mitchell. Appellant not only raises the question of variance as to the testimony, but asked the court to instruct the...