Sisk v. State

• Decision Date: 17 November 1897
• Citation: 42 S.W. 985
• Parties: SISK v. STATE.
• Court: Texas Court of Criminal Appeals

42 S.W. 985

SISK v. STATE.

Court of Criminal Appeals of Texas.

November 17, 1897.

Appeal from district court, Parker county; J. W. Patterson, Judge.

Dan Sisk was convicted of receiving stolen cattle, and appeals. Affirmed.

Albert Stevenson, J. M. Richards, and R. L. Stennis, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of receiving stolen cattle, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant assigns as error the action of the court in overruling his motion for a continuance. The continuance was asked on account of the absence of Mrs. Elizabeth Sisk and Ol Vandergriff. The court, in his explanation, shows that Vandergriff was present, and so he is eliminated. It was proposed to be proved by Mrs. Elizabeth Sisk that she was the owner of the pasture where a number of cattle in the OBO brand were seen, and that she had control of the same; and that Ed McCoy, and not defendant, claimed to own said cattle. We do not understand from the record in this case that either of said propositions was disputed by the state; and in this connection the court also explains that Will Sisk, who the proof showed was Mrs. Sisk's manager, and controlled said pasture for her, although he was present, and could testify to all the facts to which Mrs. Sisk could testify, was not placed upon the stand by the appellant. The conviction was not for theft of said cattle, but for receiving the same from Ed McCoy; and so we take it that Ed McCoy's claim of ownership of the mulley cow that ran in the said pasture in the OBO brand is entirely consistent with appellant's guilt as a receiver of stolen cattle. Besides, appellant offered abundant proof of this claim of Ed McCoy. We do not think there was any error in overruling the motion for a continuance.

Appellant's second assignment of error questions the action of the court in admitting, over defendant's objection, the testimony of W. G. Buster, to the effect "that certain officers, to wit, Sheriff McCracken, Taylor, and Collier, had been down into the neighborhood of defendant, looking around defendant's home for cattle, and that a great many people went down there to look for cattle. Appellant objected to this testimony, because it did not serve to throw any light upon the case, and was offered for the sole purpose of showing to the jury that the officers of the law had been suspicioning the defendant of being a thief; and because it was not competent, and irrelevant, and highly prejudicial to the defendant's rights." It was in proof that the witness W. G. Buster, some time in April, lost a number of his cattle—from 50 to 75 head—out of his pasture, and that some time in the ensuing August he found some of said cattle in the pasture of Mrs. Sisk, near the home of the defendant, and in that vicinity. He recovered eight head, and the evidence identifies two other head that were traced to the possession of appellant. It was also shown in the case that Ed McCoy lived at the same place with the defendant, associated continually with him, and the defendant himself showed that McCoy claimed to own said cattle; and it was also shown that Ed McCoy pleaded guilty to two indictments which charged him with the theft of cattle (the indictments charging the cattle to belong to Buster). Now, the fact that the officers went down there looking for cattle was certainly relevant to be proved in this case. It is not shown in the bill that other people who may have gone there to look for their cattle found any cattle, and it will not be presumed that they did; and we fail to see how the bare fact that they may have gone there to look for cattle, under the circumstances of this case, could have prejudiced the defendant. It was an admitted fact that his companion, Ed McCoy, was stealing cattle; and it was also shown that there was a "pocket," or V-shaped territory, which contained the only water in that vicinity, and that a great many cattle came in there; and it is perfectly reasonable that other people may have gone there to look for cattle, and the bare fact that they did do so, even if it be conceded that such testimony was not relevant, could not prejudice the defendant.

Appellant objected to the introduction of the testimony with reference to the head of cattle found in the possession of Doggett, and also with reference to the head of cattle found in possession of Millage Smith, on the ground, as he alleges, that the state had proved that the owner had found eight head of cattle in the pasture of Mrs. Sisk, near the home of appellant, and that the proof of the state should have been confined to that transaction, and that the finding of the other two head of cattle was a separate and different transaction. When we examine the record in this case, the position of appellant is not tenable. The state's proof shows that the prosecutor lost from 50 to 75 head of cattle at the same time. So far as the state is concerned, the theft of all these cattle was one transaction; and the fact that appellant was first found in possession of eight head, and was afterwards found in possession of two other head of cattle, would not alter the case; nor could the state, under the circumstances, be driven to an election as to which particular head of cattle it would prosecute for.

There is nothing in appellant's contention that the testimony introduced by the state as to what defendant stated before the grand jury was not admissible. His statements were made after he was duly warned, and had reference to the cattle embraced in this prosecution; and the state could not be driven to elect as to which particular cattle for the taking or receiving of which it would insist upon for a conviction of the defendant (the state's case tending to show that all of said cattle were taken and received at the same time). There were two counts in the indictment,—one for theft of cattle, and the other for receiving the same cattle knowing them to have been stolen,—and the state was not required to elect upon which of said counts it would insist for a conviction of appellant.

On the trial, the state, over the objection of the appellant, introduced the following testimony: The witness A. T. Collier stated: "That he went to the defendant's home several times as an officer. That he was searching for stolen property, and he found in the thicket near the defendant's house some cow heads and some pieces of hide. `Some of the heads were bleached, and some had the hides still upon them. I think there were two or three which still had the hide on. The thicket was about 75 or 100 yards from the defendant's house. I think this was some time in August, 1896.' The testimony was objected to by the...