Bennett v. State

• Decision Date: 27 May 1893
• Parties: BENNETT v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 684

BENNETT v. STATE.

Court of Criminal Appeals of Texas.

May 27, 1893.

Appeal from district court, De Witt county; James C. Wilson, Judge.

Joe Bennett was convicted of theft of cattle, and appeals. Affirmed.

Baker & Sumners, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of the theft of cattle, and his punishment assessed at three years in the penitentiary. This is the third appeal. It was reversed, November 20, 1890, because there was no charge on alibi, (15 S. W. Rep. 405;) it was again reversed, November 14, 1891, because the charge on alibi was not sufficient, (30 Tex. App. 342, 17 S. W. Rep. 545;) and it is again before us.

Appellant complains that the court erred in permitting the witness Stokes to reproduce the testimony of P. F. Breeden, a deceased witness, who testified on a former trial. We think there is nothing in the objection. The same testimony of wagon tracks, and the finding of the meat in West's and Bryant's houses, were testified to by three or four other witnesses, for the track was trailed by three witnesses, from the offal of the stolen animal to West's house, the morning after the killing. Nor is it true that a witness must be able to testify to the substance of the entire testimony of a deceased witness in order to be qualified to reproduce it; for, if so, you could always disqualify a witness by proving a forgetfulness of a part of the testimony. If a witness can testify to the substance of all that is said on direct and cross examination upon one subject, it will be admissible, though there may be other portions of said testimony, as to other matters, not remembered by the witness. 1 Greenl. Ev. § 165; Summons v. State, 5 Ohio St. 358; Thomp. Trials, § 388. So far as given, the testimony in no way differs from testimony already given by other witnesses on the subject of the wagon track.

2. The court did not err in charging the jury that the animal running on the range is in the constructive possession of its owner. We are unable to appreciate the position that it is a charge on the weight of the testimony. Wherever running, whether on its range or not, unless in the actual possession or control of another, the animal is in the constructive possession of its owner. The fact that it was on or off the range is wholly immaterial. If a charge on the weight, it is harmless, as said in the Bishop Case, 43 Tex. 395. There must be a substantial infraction of the...