Moore v. State

• Decision Date: 09 December 1908
• Citation: 114 S.W. 807
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

114 S.W. 807

MOORE v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1908.

Appeal from District Court, Angelina County; James I. Perkins, Judge.

Hence Moore was convicted of hog theft, and appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of theft of a hog, and his punishment assessed at two years' confinement in the penitentiary.

Bill of exceptions No. 1 complains that the court was in error in charging that a hog belonging to J. A. McAdams was taken, because the indictment is not one hog, but "on hog." Attached to the bill of exceptions is the original indictment, which shows that same charges appellant with stealing one hog, the property of J. A. McAdams. We accordingly hold that there is no error in the charge of the court.

Bill of exceptions No. 2 complains that the district attorney used the following language in his argument to the jury: "Gentlemen of the jury, if old man McAdams had not happened up on these negroes, George Matthews would never have smelled pork from that hog; but they would have divided it and had pork themselves." While it is true appellant testified that he had authority to hunt George Matthews' hogs, yet the circumstances very clearly show that he did not know Matthews' hogs, and, as state's counsel insists, the accidental approach of the prosecuting witness in this case alone saved his hog, and that appellant, instead of hunting hogs for Matthews, used Matthews' request as a basis upon which to steal hogs. The argument was legitimate.

Bill of exceptions No. 3 complains that the court erred in not charging that "it is incumbent upon the prosecution in this case to prove the ownership of said hog as alleged in the indictment, and, having failed to prove such ownership as alleged, you will acquit the defendant." There is no error in refusing this charge, since there is no testimony in this record that shows the hog belonged to any one other than J. A. McAdams, the party alleged to be the owner of the hog.

Bill of exceptions No. 4 complains that the court failed to charge on voluntary return of the property. The evidence in this case does not suggest such a charge. There was no voluntary return, but the owner of the hog ran upon appellant in the bottom after he (appellant) had killed the owner's hog.

Bill of exceptions No. 5 complains that the court erred in not charging the jury that, if Seymour Castle took and stole the hog, and defendant did no act or uttered no word in aid or encouragement of the said Seymour Castle, he would not be guilty. There is no evidence in the record suggesting such an issue. Appellant himself swears that Castle was merely assisting him. He so stated to the prosecuting witness at the time lie was discovered with the hog, and swore it on the trial of this case.

Bill of exceptions No....