Collins v. State

• Decision Date: 15 June 1898
• Citation: 46 S.W. 933
• Parties: COLLINS v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W. 933

COLLINS v. STATE.

Court of Criminal Appeals of Texas.

June 15, 1898.

Appeal from district court, Grayson county; Don. A. Bliss, Judge.

J. F. Collins was convicted of receiving stolen cattle, and he appeals. Affirmed.

Maxey & Vowell, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

The indictment against appellant contains two counts,—the first for theft of seven head of cattle from Frank Sperry, and the second count charging him with receiving the property from Abe Crow. Appellant was convicted under the second count. By the testimony it is disclosed that the Sperry cattle were taken late in the evening or early part of the night of the 7th of December, 1896. They were sold by the defendant the following day, in the city of Denison, about 20 miles from Sperry's pasture. The state introduced proof tending to establish both counts, and the defendant relied on alibi as to the first count, and a purchase from Abe Crow as to the second. Abe Crow testified that he and appellant committed the theft; that he drove the cattle to Denison, and defendant sold them, the proceeds being divided between them.

Appellant insists that the court committed an error in refusing to give defendant's special charge No. 2, as follows: "If you believe from the evidence that the defendant purchased the cattle mentioned in the indictment, in good faith, from one Abe Crow, or if from the evidence you have a reasonable doubt that he so purchased said cattle, you will give the defendant the benefit of such doubt, and find him not guilty." In treating of this charge, it will merely be necessary to discuss the question as applied to the conviction on the second count, of receiving stolen property. The court refused the charge above indicated, but we believe, in lieu thereof, gave a charge which covered the same ground, and properly guarded appellant's rights in the premises. The charges of the court covering that subject were as follows: The court instructed the jury on the doctrine of principals with reference to theft, and, unless they believed, beyond a reasonable doubt, that appellant was present and participated in the fraudulent taking, to acquit him of said charge. And the court further instructed the jury, with reference to the second count, that, if they believed from the evidence that the defendant received said cattle from said Crow in good faith, without knowing that the same had been stolen, or "if the evidence leaves in your minds a reasonable doubt that he received the same knowing at the time that they were stolen, you cannot find the defendant guilty of receiving stolen cattle, knowing that the same were stolen." The above charge was unquestionably intended to respond to appellant's proof of purchase of said cattle from Abe Crow. This was the only method of receiving said cattle set up by him. If this receiving by purchase was in good faith, as stated by the court, it was a complete answer to the charge.

Appellant, by his third assignment, questions the admission of the testimony of Jim Greening and Lem Moton, to the effect that, on the first trial of the defendant, they heard Abe Crow testify that he (Crow) and the defendant stole the cattle. This testimony was admitted by the court as bearing on the credit of the witnesses Greening and Moton, and the court so limited the effect of said testimony in his charge. It is contended by counsel that this method of discrediting or impeaching a witness is unknown to the law. Evidently, the object of the introduction of this testimony was to show that appellant at a former trial had the witnesses Moton and Greening then present, and, if their testimony was then true, it would have been very valuable to him, as proving an alibi as against the first count, for theft of said cattle, and the fact that they were not used at that time would be very suggestive of a subsequent fabrication of their testimony, and we think, as presented in the bill of exceptions, could have been used for that purpose. Said testimony could not have affected appellant injuriously as to the second count, because the testimony of these witnesses was relevant simply to the first count of the indictment.

Appellant urges that the court erred in admitting the entries in the books of the witness Lem Moton, because same were irrelevant, immaterial, and hearsay as to the defendant. In this connection it is also insisted that it was incompetent for the state, having introduced the books, to show erasures and interlineations in the entries, and then to show, by expert testimony, that erasures and interlineations had been made in the books so as to change the original dates and amounts. The record shows that this witness Moton was introduced by the defendant to show that late on the evening of the alleged theft, which was committed about 20 miles from his butcher shop at Denison, he bought two head of cattle from appellant. In the course of this examination he stated that he knew these facts and the date of the purchase from entries made in said book at the time, and...