Norsworthy v. State

• Citation: 77 S.W. 803
• Parties: NORSWORTHY v. STATE.
• Decision Date: 18 December 1903
• Court: Texas Court of Criminal Appeals

77 S.W. 803

NORSWORTHY v. STATE.

Court of Criminal Appeals of Texas.

December 18, 1903.

Appeal from District Court, Lavaca County; M. Kennon, Judge.

W. F. Norsworthy appeals from a conviction. Affirmed.

Patton & Schwartz, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of one head of cattle, and his punishment assessed at confinement in the penitentiary for a term of two years.

By appellant's first bill of exceptions, he questions the action of the court permitting the state to introduce the confessions of appellant to the sheriff, made in the presence of the justice of the peace, county attorney, and deputy sheriff, on the ground that appellant was then under arrest, and reasonably believed himself under arrest. The circumstances indicate that the sheriff was investigating the case, and went to the little village of Sublime where appellant lived, who was both a butcher and constable of that precinct. He went from Miller's store across the street to appellant's market house, and asked appellant to come over to Miller's store with him, which he did, and there, in the presence of several other parties, asked him about a certain yearling alleged to have been missing, and a hide. The sheriff spoke to him, as follows: "I just wanted to go to you first. I have heard this talk about the yearling, and want to know whose yearling it was he had killed." Appellant said, one of his own. The sheriff then said, "Where is the hide?" and appellant said, "over at home." The sheriff then asked him to show him the hide, and that, if it was his own, everything would be all right. Appellant replied to the sheriff that he would not show it to him. The sheriff then said, if he would not, he would have to get a search warrant and search for it. After some further conversation, appellant told him there was no use getting a search warrant; that he could just go over there and search for it, but he would not find it as the hide was not there. To which the sheriff replied, "Why, you just told me that it was there." And defendant said, "You will not find it." The record further shows that appellant was not then arrested —that being in the morning—and appellant was not arrested until about midnight, when process was gotten out for him. We do not believe there is anything in this showing indicating that appellant was either under arrest, or that he believed himself under arrest. Consequently the testimony was admissible. Connell v. State (Tex. Cr. App.) 75 S. W. 512. In this connection, appellant contends that, although the evidence may have been admissible, yet there was an issue as to its admissibility, and this should have been submitted by the court in the charge to the jury. Neither appellant nor his witnesses testified to a contrary state of facts than that testified to by the sheriff, and we do not believe the sheriff's testimony raised any issue on this question. Therefore it was not necessary for the court to instruct the jury in regard thereto.

During the trial the state showed by the witness Noble, sheriff of Lavaca county, that after the alleged commission of the offense he went to Sublime, where appellant lived, to investigate the matter, and that he had a conversation with him; that he (witness) went down to the house of a Mexican, and of Henry Mack's and Jack Monroe's; that he found at the Mexican's some pieces of a red hide, apparently about the size of a yearling, and he found at Henry Mack's house a part of a hide, to wit, a half of a hide apparently of a yearling, and the same color as the strips found at the Mexican's, which half hide had an inverted figure 3 on it. Appellant objected to this testimony on the ground that no privity had been shown between appellant and either of said parties in the theft of any animal, or that defendant had at any time left any hide or part of a hide with them. Thereupon the state's attorney stated that he expected to connect defendant with the taking of the animal, the hide of which was found with these parties. As has been often stated, a bill of exceptions must be complete within itself, and it must show the conditions or environments being all the evidence on that point, so that the matter can be intelligently revised in the appellate...