Childers v. State

• Decision Date: 13 May 1896
• Citation: 35 S.W. 654
• Parties: CHILDERS v. STATE.
• Court: Texas Court of Criminal Appeals

35 S.W. 654

CHILDERS v. STATE.

Court of Criminal Appeals of Texas.

May 13, 1896.

Appeal from district court, Scurry county; Ed. J. Hamner, Judge.

Thelce Childers was convicted of altering the brand on one head of cattle with intent to defraud, and appeals. Reversed.

Smallwood & Smith, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of altering the brand on one head of cattle with intent to defraud, and given two years in the penitentiary, and prosecutes this appeal.

1. Appellant made a motion for a continuance on account of the absence of one Joe Madrall, who was alleged to reside in Runnells county. The diligence alleged to have been used for this witness was that process was issued for him on the 20th day of January, 1896, and returned to court "Not found" on the day of the trial, which was January 25, 1896. The indictment in this case was returned into court on the 25th day of September, 1895. No reason is shown why process was not issued earlier for said witness. For aught that appears, there was an utter lack of diligence on the part of the appellant in suing out his process. In the application it is stated that the defendant expected to prove by said witness that he assisted in delivering to W. A. Johnson a herd of yearlings, branded PRX, among which, defendant is informed, the state will claim, and witnesses may testify, was the animal he was charged in this case to have stolen, illegally branded, and changed the brand on, and that such delivery was made for the defendant. Defendant expects to prove by said witness that said delivery was made for F. M. Childress, and not for the defendant, and that defendant had nothing to do with said delivery. As this question is presented on motion for a new trial, we look to the record to see whether the absent testimony was material or not. The record shows, as also the certificate of the judge to the bill of exceptions, that the state offered no such testimony as is alleged by the defendant that the state would offer. All the testimony on that subject was offered by the appellant himself, and, so far as the state is concerned, no such issue was presented.

2. Appellant also complains that on the trial of the case he was not permitted to prove by one Frank Parks, a witness for the state, on cross-examination, that it was a notorious fact that there was a good deal of mavericking going on down on the Clear Fork, on the line of Scurry and Fisher counties, during the year 1893. The bill does not show the materiality of this rejected testimony, and we fail to see how the same was material.

3. The appellant excepted to the refusal of the court to give to the jury the following charge: "You are instructed that if you find that the defendant believed that the cattle had been stolen when he saw said cattle, and that defendant did alter the brand upon said cattle with the intention of preventing the thief from recovering said cattle, then you will find the defendant not guilty of altering the brand with intent to defraud." The court gave a charge "that, before the jury could convict the defendant, they must believe beyond a reasonable doubt that the defendant altered the brand upon said cattle with intent to defraud the owner thereof." If the jury were required to find as an affirmative fact that the alteration of the brand was done with intent to defraud, this involved the issue as to whether or not said alteration was done with some innocent intention. We scarcely see, however, that the defense set up by some of the testimony on the line of this charge and embodied in the charge could constitute a legal and valid defense. The idea that the defendant altered the brand on said head of cattle to prevent some one else from stealing it seems to us rather far-fetched.

4. Appellant also complains that the court erred in not limiting in his charge to the jury the purpose of the evidence of the brand as a fact bearing on the identity of the animal, and in not instructing them that they should not consider it any evidence of ownership. No objection was made to the...