Gorrell v. State

• Decision Date: 11 March 1914
• Citation: 164 S.W. 1012
• Parties: GORRELL v. STATE.
• Court: Texas Court of Criminal Appeals

164 S.W. 1012

GORRELL v. STATE.

Court of Criminal Appeals of Texas.

March 11, 1914.

Appeal from District Court, Grayson County; John C. Wall, Special Judge.

Dot Gorrell was convicted of bringing stolen property into the state, and he appeals. Affirmed.

C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

The appellant was indicted, tried, and convicted under article 1431, P. C., for bringing into this state property stolen in Oklahoma, and his punishment fixed at two years in the penitentiary. The indictment follows the statute, is in accordance therewith, and is also in accordance with the form laid down by Judge White in section 1660 of his Ann. P. C., and is sufficient.

One Joe Lynch was a principal with appellant in the commission of the offense. He testified fully in the case, and clearly made out the case against appellant. The court charged that he was an accomplice, and that he had to be corroborated as required by the statute. The testimony, both positive and circumstantial, was amply sufficient to corroborate Lynch. The court did not err in refusing appellant's peremptory charge to find him not guilty.

The testimony as a whole, both positive and circumstantial, was amply sufficient to show that appellant and said Lynch, acting together, stole several head of cattle from the owner, Mr. Henry, in Oklahoma, near the Red river, late in the evening or early part of the night of April 29, 1913, and drove several head of said stolen cattle from Oklahoma to near Denison, in Grayson county, Tex., and that they sold them there to a man by the name of Lamb, who slaughtered them, and that they each got part of the pay therefor. Among these cattle was one noted cow, thoroughly and completely identified, and her hide, after the slaughter, found at Lamb's fully and completely identified as the hide of said cow and as the property of said Henry, stolen from him on the evening or night of April 29th.

Appellant, in his motion for new trial, by many grounds thereof, complains of the introduction of certain testimony over his objections, and to the court overruling his motion for a continuance. There is no bill in the record to the overruling of his motion for continuance and to many of his said complaints. None of these grounds can therefore be reviewed by this court. We will discuss such of his bills as are in the record and made grounds of his motion for new trial.

Appellant, in one ground, complains that the jury, while deliberating on their verdict, commented upon and discussed his failure to testify. The motion is not sworn to, nor is it in any other way supported by affidavit or any testimony, and, of course, the court did not err in not granting a new trial on that account. Hicks v. State, 166 S. W. ___, recently decided, but not yet reported.

When the time for the regular term of the court at which appellant was tried came on, Judge Pearson was absent and unable to serve on account of sickness. Thereupon the bar duly and regularly elected Judge John C. Wall special judge, who accepted, qualified and held that term of court, and was the presiding judge on the trial of appellant. By one bill appellant complains that, while the trial was proceeding and one of the witnesses was on the stand, Judge Wall vacated the bench and walked down to where the state's attorneys were engaged in the trial, and, in the presence of jury, for several minutes, talked to the state's counsel. Appellant objected to this. The court, in approving the bill, qualified it by stating: "That nothing spoken of between the court and attorney for the state was so spoken that he could possibly have been heard by the jury; that it in no way or manner related to how state's attorney should frame any question to make evidence admissible, and was not intended, in any manner, to impress the jury, unless the jury could go to such a conclusion merely from the fact that the court had a conversation with attorneys for the state." This showed no error whatever.

By another bill appellant shows that the state proved without objection that after the one head of cattle was stolen from said Henry in Oklahoma by appellant and said Lynch, that said Lynch testified that he and appellant were acting together and stole the said one head and 11 others in Oklahoma, and on the same night brought them into Grayson, county, Tex., and delivered them to the slaughterhouse of Lamb near Denison, and each received in part payment of said cattle a check for $50 from said Lamb, said Lamb knowing that said cattle had been stolen; that, while Mr. Wheeler was being examined by the state, he testified, without any objection by appellant, that he had heard of said Henry having cattle...