Powers v. State

• Decision Date: 05 March 1913
• Citation: 154 S.W. 1020
• Parties: POWERS v. STATE.
• Court: Texas Court of Criminal Appeals

154 S.W. 1020

POWERS v. STATE.

Court of Criminal Appeals of Texas.

March 5, 1913.

Appeal from District Court, Zavala County; R. H. Burney, Judge.

B. C. Powers was convicted of theft, and he appeals. Affirmed.

See, also, 152 S. W. 909.

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

HARPER, J.

Appellant was prosecuted for the theft of one head of cattle, and his punishment assessed at two years' confinement in the penitentiary; the punishment in this case being made cumulative of another conviction for theft had at a previous term of the court.

The testimony in this case shows that the animal alleged to have been stolen was branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE; that state introduced a bill of sale from appellant to W. E. Moore to three head of cattle, the bill of sale showing the brand to be NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE. Mr. Moore was dead, but his son testified that appellant gave this bill to his father; that he helped kill one of the animals purchased by his father from appellant; and that the hide exhibited in evidence was the hide of the animal purchased by his father from appellant, and which he (the witness) assisted in killing. This hide was identified by the owner as the hide of one of the animals stolen from him. Under the circumstances, the court did not err in refusing the special charge requested by appellant that if the jury believed that the animal described in this indictment was one of the animals described in the bill of sale, to acquit the defendant. The indictment charged theft of an animal from Jno. S. Thompson; the hide of the animal found in Mr. Moore's possession was branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE, and his son testified this animal was sold by appellant to his father; Mr. Thompson positively identifies this hide as the hide of one of the animals he lost.

Appellant moves for a new trial on the ground that one of the jurors, T. M. White, had formed and expressed an opinion prior to the time he was accepted on the jury. That he had said in the presence of two gentlemen "that he had heard all the evidence in the case, and that, under the evidence, the jury was bound to send him off." The state controverts this ground, and files an affidavit of Mr. White that he had never heard the testimony in this case against appellant, but he did hear the evidence in the other case against appellant, wherein he was charged...