Watters v. State

• Decision Date: 09 May 1906
• Citation: 94 S.W. 1038
• Parties: WATTERS v. STATE.
• Court: Texas Court of Criminal Appeals

94 S.W. 1038

WATTERS v. STATE.

Court of Criminal Appeals of Texas.

May 9, 1906.

Appeal from District Court, Travis County.

Randolph Watters was convicted of theft, and appeals. Affirmed.

See 82 S. W. 654.

Sandbo & Shelton, W. B. Corwin, and Walton & Walton, for appellant. Warren W. Moore, Dist. Atty., and J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft of cattle, and his punishment assessed at two years' confinement in the penitentiary; hence this appeal.

There are no former bills of exception in the record. We note in the statement of facts, here and there, that appellant noted an exception; but no reason is stated as an objection to the testimony offered or as a reason why rejected testimony should have been received. Nor can we tell from the statement involved in connection with the appellant's exception what in fact was excepted to. In other words, said exceptions are not in shape to be reviewed by this court. Nor do we understand by the argument of counsel that he insists on these exceptions.

As to the introduction in evidence of other hides found in the field, if this matter was properly presented by bill of exceptions, we believe it was admissible. This is a case depending on circumstantial evidence, and it was a circumstance against appellant to show that other hides than those of the animals alleged to have been stolen were found buried or concealed in appellant's little field of 18 or 20 acres. The more hides so found buried and concealed, the more cogent would the circumstances be against him in that respect.

Another matter which we notice, though we do not believe the bill of exceptions sufficiently raises it, is that the state was permitted to put witness Fox on the stand, who was not placed under the rule, and to use said witness notwithstanding he had read his testimony delivered on the former trial. It is shown how he came to have his testimony, and how he came not to be placed under the rule. We have heretofore held that it was a matter within the sound discretion of the court whether a witness could be used who had not been placed under the rule, where the rule was invoked; and that this would not constitute reversible error unless an abuse of the court's discretion should be shown. We do not believe it was shown in this case; nor do we believe it was error to have allowed the witness to have testified, although he is shown to have reviewed his former testimony. We believe he could have craved this even after he was placed on the stand, if he had asked it of the court and had stated it would refresh his recollection. It does not occur to us that the remarks of the district attorney in argument, to the effect: "Defendant and his wife and 9 or 10 children are living on a 15-acre place and thriving. How do they do it? It is up to the defendant to explain" —could be considered a reference to his failure to testify. However, even that matter is not properly presented for review.

The main question for consideration in this case is whether or not the evidence supports the verdict. This case was tried at a former term of the district...