Mueller v. State

• Decision Date: 21 May 1919
• Docket Number: (No. 5259.)
• Citation: 215 S.W. 93
• Parties: MUELLER v. STATE.
• Court: Texas Court of Criminal Appeals

Page 93

215 S.W. 93

MUELLER v. STATE.

(No. 5259.)

Court of Criminal Appeals of Texas.

May 21, 1919.

On Motion for Rehearing, October 8, 1919.

Appeal from District Court, Taylor County; Joe Burkett, Judge.

Pearl Mueller was convicted of cattle theft, and he appeals. Affirmed.

Walter Morris, of Ft. Worth, and J. F. Cunningham, of Abilene, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Taylor county of the offense of the theft of cattle, and his punishment fixed at confinement in the penitentiary for two years.

The first contention before this court on appeal is that the trial court erred in permitting the witnesses Gilmore and Biggs to testify that the horses' tracks, which accompanied the tracks of the alleged stolen cattle from the pasture of the owner to where said cattle were found, were identical in size, shape, and appearance with the horses' tracks made in the presence of said witnesses by horses ridden by appellant and Compton, who were charged with the theft. Both said witnesses first described the tracks as seen by them accompanying the said cattle tracks, and also described the tracks as made by the horses ridden by appellant and Compton, and were then permitted to state that said tracks were identical in shape, size, and appearance. The proof showed that the cattle were taken on Saturday night, and were tracked by Gilmore and Biggs the following Monday a distance of 10 or 12 miles, to where they were found in Compton's field. Tuesday morning following was the time when appellant and Compton appeared on horseback, and the appearance of the tracks of the horses they were riding was observed by the said witnesses, who testified to the facts objected to by appellant. The objections were that the tracks had not been measured, that the same showed no unusual appearance with reference to the size of the same, that no sufficient predicate was laid by the state by testimony comparing the tracks accompanying the cattle with those of the horses ridden by appellant and Compton, that the tracks were in different locations, and the evidence was immaterial and irrelevant.

The trial court appended to his approval of the bill of exceptions complaining of this error, and makes a part of said bill as approved, a question and answer reproduction of what each of these witnesses said on this point, as well as the objections made thereto. The witnesses both swore that they examined the respective tracks closely, and that they were the same in appearance, size, and shape; that both horses were barefooted; that one was a large track, and inclined to be long, and it showed that the hoof was worn off until the entire ball of the foot pressed on the ground and packed it, showing the print of the ball of the foot on the ground; that the other was a small track, a round track. The front foot, as it lifted up, would throw the dirt back. The objections to this evidence, which was shown by the explanatory question and answer statement appended by the court, were that same were but conclusions of the witnesses, and that the questions calling for said statement were leading and suggestive.

We are not cited to any authorities by the appellant which hold such evidence inadmissible. On the contrary, the rule laid down in the authorities cited seems to be in accord with the doctrine that, where there are peculiarities in the tracks which are described and peculiarities in the admitted and proven tracks, a witness will be permitted, after testifying to the peculiarities, to give a shorthand rendering of the facts, by saying that in his judgment or opinion the tracks are identical. Parker v. State, 46 Tex. Cr. R. 464, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann. Cas. 893, and authorities cited; Williams v. State, 60 Tex. Cr. R. 459, 132 S. W. 345; Newton v. State, 65 Tex. Cr. R. 87, 143 S. W. 639.

It is held in Thompson v. State, 45 Tex. Cr. R. 403, 77 S. W. 449, that it is not necessary for a witness to qualify as an expert in order to testify as to similarity in tracks. Where facts are detailed, showing the individuality of a particular track in question, and that the admitted or proven track, immediately connected with the accused, possessed the same marks or characteristics, the fact that the same was not measured is only an objection to the probative force, and not to the admissibility, of the evidence. Measurements depend for their force upon the accuracy and truthfulness of the measures, and are by no means the only method of determining the admissibility of evidence of similarity of tracks.

Appellant further contends that the state was erroneously allowed to introduce testimony that other cattle, found in the field of Compton with those alleged to have been stolen on the occasion in question, also belonged to the owner of said stolen cattle, and had been taken a short time prior to the time alleged in the instant case. The appellant accepted his bill of exceptions No. 2 complaining of this matter, with the court's qualification thereon, in substance that all of appellant's witnesses had attempted to prove that said 16 head of cattle charged in the instant case and the others also, amounting in all to 26 or 28 head, were cattle raised by Compton, some of which had been sold by him to appellant, and that none of them had brands recently changed, retraced, or burned on them, and that said cattle were of the same kind, class, and breeding as Compton's cattle, with which the witnesses so testifying said they were familiar and had handled and dipped. Further, the court says in said explanation that several of the witnesses identified the cattle as being cattle raised by Compton.

As rebutting this defensive evidence, the court says the state was permitted to prove that, in addition to the 16 head, the theft of which was charged in the instant case, other cattle, with the alleged stolen ones, were also identified as the property of the owner of those most recently stolen. It will also be observed that Henry Compton was a witness for appellant, and claimed that he raised the cattle in question, and that the same were not stolen by him or by appellant. We think the evidence objected to was admissible to rebut the evidence offered by appellant and above referred to, and that it was further admissible for the purpose of showing lack of innocent connection on the part of appellant with the cattle charged in the instant case, and also admissible for the purpose of showing his intent with respect thereto, or as developing the res gestæ, or as proving a legitimate chain of circumstances affecting the guilt of the appellant.

Another bill of the appellant was to that portion of the court's charge which limited the effect of the evidence of the taking of the cattle other than those charged in the instant case. The charge objected to is as follows:

"In this case the state has introduced evidence that other cattle than those alleged in the indictment were taken, at about the same time and place. You are instructed that you can only consider such testimony for the purpose for which it was admitted; that is, to establish the identity in developing the res gestæ of the alleged offense, or to prove the guilt of the accused by circumstances connected with the theft, if any, or to show the intent with which the defendant acted with respect to the property for the theft of which he is now on trial, and you will consider it for no other purpose, for you cannot convict the defendant for the theft of any property than that named in the indictment."

The contention is that this is a charge on the weight of the evidence. It is clear that, when evidence of appellant's possession, of other recently stolen property appears in the record, it becomes the duty of the trial court to limit the same. Carter v. State, 23 Tex. App. 508, 5 S. W. 128; Alexander v. State, 21 Tex. App. 406, 17 S. W. 139, 57 Am. Rep. 617; House v. State, 16 Tex. App. 25. It was equally clear that the charge must be so worded as to point out specifically the evidence which the court is so limiting, and that without trespassing on the rule against expressing the court's opinion as to the weight of such testimony. Burrell v. State, 18 Tex. 713; Wright v. State, 41 Tex. 246; Stephenson v. State, 4 Tex. App. 591; Young v. State, 79 S. W. 34; Hemphill v. State, 72 Tex. Cr. R. 638, 165 S. W. 462, 51 L. R. A. (N. S.) 914.

Nor can it be questioned that it is proper for the court to assume as true any fact which is not controverted. The court's charge in the instant case states that the state had introduced evidence "that other cattle * * * were taken." This statement by the court in the charge was borne out by the undisputed evidence. This was not an expression of the opinion of the court as to the legal effect of said evidence, nor an opinion as to the weight of the same. In the cases cited by appellant in support of this contention, the language used by the trial court is not the mere statement of an undisputed fact which is in evidence. In the Cortez Case, cited, 74 S. W. 907, this was the objectionable language used by the trial court: "The state has introduced evidence tending to prove the theft of other property," etc. So in the Cavaness Case, 45 Tex. Cr. R. 209, 74 S. W. 908, cited, and similar language occurs in all the cases referred to in support of this contention. This language just quoted is so clearly an intimation that in the belief of the trial court the effect of the evidence referred to is to prove theft as to need no comment by us.

But this is not true of the language of the charge in the case at bar. The other complaints as to the court's charge were of matters to which no proper exception was taken, and no serious error can be shown.

The claim that the evidence is insufficient to support the verdict is not well founded. The cattle were taken on Saturday night from the possession of the...