Ferguson v. State

• Decision Date: 18 January 1911
• Citation: Ferguson v. State, 136 S.W. 465, 61 Tex.Cr.R. 152 (Tex. Crim. App. 1911)
• Parties: FERGUSON v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 465

FERGUSON v.STATE.

Court of Criminal Appeals of Texas.

January 18, 1911.

Rehearing Denied April 19, 1911.

Appeal from District Court, Sterling County; J. W. Timmins, Judge.

R. A. Ferguson was convicted of horse stealing, and he appeals.Affirmed.

Jeff D. Ayers and Bell & Upton, for appellant.John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged with and convicted of theft of three horses.

1.When the case was called for trial, appellant filed an application for a change of venue, which was met by a controverting affidavit.We deem it unnecessary to recapitulate or go into a detailed statement of the evidence introduced on this motion.In a general way the witnesses, or some of them at least, state that there was some prejudice against the appellant, and that his case had been talked about in the county.Most of the witnesses testified that it had not been talked about more than other cases pending on the docket, though there is some evidence to the effect that it was discussed perhaps more than is usually the case.However, take the testimony as a whole, the witnesses showed that appellant could get a fair and impartial trial in that county; that the prejudice was not of such a nature or extent in the county as to preclude a fair trial.There was no evidence introduced showing a combination against him of influential persons, and, in fact, there seems to have been no evidence going to show there was a combination of any sort or character.We do not, therefore, believe that there was any error on the part of the court in refusing to change the venue.

2.The court permitted the witness Wood to testify that he saw defendant sign the appearance bond, and that, when he signed said bond, the witness had appellant under arrest charged with this offense, and that in the opinion of the witness the name R. A. Ferguson to said appearance bond which was signed by appellant is in the same handwriting as the bill of sale signed by W. R. Capps and Fred Baker.Subsequently there was a motion to exclude this testimony from the jury.The objection urged to this is that it was an act done by the defendant while under arrest, and in the custody of the sheriff, and that his acts while under arrest could not be used against him on the trial.There was no error on the part of the court in permitting this testimony nor in refusing to exclude it.It was introduced and used for the purpose of a comparison of handwriting as indicated by the bill.Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206.In the Hunt Case the witness Walker testified that a written application for an attachment made by the defendant was signed by the defendant, and that he was under arrest and in custody of an officer at the time he signed it, and that the signature to said application as well as the signature of E. W. Hunt to two letters shown him were made by the same person, and that the signature to the application and the writing of the two letters are the same, and that the documents were written by the same person.Several objections were urged to the introduction of this, all of which were overruled, and the testimony admitted.Objection was urged in that case that the party was under arrest, and, this being true, all the acts and statements, etc., of the appellant were inadmissible, and that the state could not by this means prove the signature to the application under the circumstances.The court said: "The act of signing the document was neither an admission nor a confession by the defendant.It was an act tending to show guilt.It does not come within the letter or reason of the rule.The fact that defendant was in custody when he signed the application would not likely affect the signature in any manner, so as to render it unfit for use as a standard of comparison.That he did sign it was no evidence against him.There was no error in this matter."We are of opinion that the question here raised comes within the rule laid down in that decision.There being no error in the admission of the testimony, it was therefore not erroneous on the part of the court not to exclude it.

3.The bill of sale was introduced to a bay horse therein described transferring the title to Frank Hoffman.This document was signed by W. R. Capps and Fred Baker.Objection was urged on the ground that it was an instrument required by law to be recorded, and that the same had not been filed among the papers for three days before the commencement of the trial, and notice given the defendant, and for the further reason that the instrument showed on its face to be witnessed by a subscribing witness, and that the state did not prove the execution of said instrument by said witness, or account for his absence, and for the further reason that the testimony, as heretofore shown, was there was a bystander who saw said instrument signed, and testified that the defendant did not sign said instrument, and for the further reason that the state did not prove the execution by any legal testimony.It...