Barfield v. State , 41 Tex. Crim. 19 ( 1899 )

Appellant was convicted of the theft of a horse, and his punishment assessed at confinement in the penitentiary for a term of three years, and he appeals.

Appellant complains that the court erred in permitting the witness John Morgan to testify that he missed his horse in "June, '96," which testimony was objected to by defendant on the ground that the indictment alleged that the offense was committed in "June, 1898," and that the testimony of said witness, so long anterior to the date alleged in said indictment, was incompetent and irrelevant. As indicated in the bill of exceptions, the gravamen of appellant's complaint is that the witness stated that his horse was stolen in "June, '96." In a different portion of the witness John Morgan's testimony appears this statement: "The calendar for 1896 shows that Sunday night before June 19th was June 14th." And it further appears from the statement of facts that the appellant carried the horse to the city of Waco on June 20, 1896. We do not think it was a material variance in the date in the indictment and the date of the offense, since the indictment states on its face that the offense was committed "anterior" to the presentment of the same, and the proof shows that the horse was stolen in the year 1896; and it certainly would not make any difference if the indictment states it was committed in 1898.

Appellant complains because the court permitted the witnesses John W. Baker, Dock Wyse, and Horace Tripp to testify to the conversation with defendant in the year 1896. The objections urged to the introduction of said testimony, as stated in the bills, is "because the same is immaterial." The bill should state wherein and how the testimony is immaterial. Such an exception is too vague and indefinite. Wade v. State, 37 Tex. Crim. 401; McGrath v. State, 35 Tex.Crim. Rep.. Moreover, we believe the testimony of the witnesses was admissible, because the same was a declaration made by defendant, and going to show defendant's guilt. Langford v. State, 17 Texas Crim. App., 445; Ferguson v. State, 31 Tex.Crim. Rep..

Complaint is made of the court's charge wherein the jury were instructed that the statements made by defendant with reference to when he got the horse in question might be proved untrue by circumstantial evidence, provided the circumstantial evidence is sufficient to satisfy the minds of the jury, etc. We think this fact could be proved by circumstantial evidence, and therefore do not think the court's charge was erroneous. Whart. Crim. Ev., secs. 10, 11; Franklin v. State, 37 Tex.Crim. Rep.. Furthermore, we think the evidence authorized the court to give the charge.

The criticism contained in the fifth assignment is not well taken. There was no error in the charge of the court calculated to injure the rights of appellant. Nor do we think the court erred in refusing to give special charges numbers 2, 3, and 4 requested by appellant. We think the verdict of the jury is supported by the evidence, and amply supports the fact that the horse was taken in Hill County, and the plea of limitation urged by appellant is refuted by the statement of facts before us. The judgment is affirmed.

Affirmed.