Burns v. State

• Decision Date: 04 December 1901
• Citation: 66 S.W. 303
• Parties: BURNS v. STATE.
• Court: Texas Court of Criminal Appeals

66 S.W. 303

BURNS v. STATE.

Court of Criminal Appeals of Texas.

December 4, 1901.

Appeal from district court, Jefferson county; S. P. West, Judge.

Frank Burns was convicted of horse theft, and appeals. Affirmed.

Brockman & Kahn, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

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

The first 13 grounds of the motion for new trial relate to the rulings of the court on the admissibility of testimony, which cannot be considered, as no bill of exceptions was reserved, presenting this matter.

The only bill of exceptions states that the verdict of the jury is contrary to the law and the evidence, in that it fails to connect defendant either by direct or circumstantial evidence sufficient to overcome the presumption of innocence. It was not necessary to present this by bill, as the ground of the motion for new trial fully covered this exception. However, we are of opinion that the evidence is amply sufficient to sustain the verdict.

Appellant also complains that the court erred in its charge, in submitting the issue of principals, and in defining principals, and in charging on the law of circumstantial evidence. Neither of these exceptions is well taken. The charge is the usual one given on circumstantial evidence, and the law of principals is clearly announced, as contained in our statutes.

The motion for new trial covers 16 pages of the transcript. We have carefully and patiently examined each and every assignment of appellant, and do not think any of them present matters authorizing the reversal of this case.

No error appearing in the record, the judgment is affirmed.

DAVIDSON, P. J., absent.

On Rehearing.

(Jan. 29, 1902.)

The judgment was affirmed at the Tyler term. Appellant's motion for certiorari having been granted, and the record perfected, it is now before us on motion for rehearing.

The second bill of exceptions complains that the court permitted the wife of J. N. Eastwood to testify. The objection is that Eastwood was a particeps criminis, and consequently his wife was disqualified. Eastwood was not indicted. There is no error in the ruling of the court.

The third bill complains that defendant's witness J. B. Parker being upon the stand, and having testified that the state's witness J. N. Eastwood had been confined in the jail of Harris county in the year 1894, and said Eastwood having denied same, defendant proposed to prove by said Parker that witness, as deputy sheriff of Harris county, knew said Eastwood at the time inquired about, and that he was confined in the jail of Harris county in the year 1894 on a charge of cattle theft; defendant's object being to contradict the testimony of the witness Eastwood, and attack his general credibility. Concede the ruling of the court to be erroneous; it clearly becomes harmless, when viewed in the light of this record, which shows various crimes charged against Eastwood to have been proved.

Bill No. 4 complains that defendant was not permitted to prove what Tom McDonald had stated to another witness. This would be pure hearsay.

The fifth bill complains that appellant offered to prove by Fitz that Tom McDonald had had a...