WARRICK V. STATE. (No. 9241.)

MORROW, P. J. The conviction is for theft of cattle; punishment fixed at confinement in the penitentiary for a period of

(Court of Criminal Appeals of Texas. June 17, two years. 1925.)

Criminal law 1090 (1)-Record on appeal, containing neither bills of exception nor statement of facts, presents no question for review, in absence of fundamental error.

Record on appeal, containing neither bills of exception nor statement of facts, presents no question for review, in absence of fundamental error.

Appeal from Titus County Court; Dan M. Cook, Judge.

E. B. Warrick was convicted of theft and he appeals. Affirmed.

J. D. Lawrence, of Pittsburg, for appellant. Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin,

for the State.

MORROW, P. J. The conviction is for theft, a misdemeanor; punishment fixed at a fine of $25 and confinement in the county jail for a period of 30 days.

The record contains neither bills of exception nor statement of facts. Therefore nothing is brought forward for review. No fundamental error has been perceived. The judgment is affirmed.

GARCIA et al. v. STATE (No. 9102.) (Court of Criminal Appeals of Texas. June 10, 1925.)

I. Indictment and information

[1] It is charged in the indictment that the appellants "did then and there unlawfully and fraudulently take one head of cattle belonging to Guadalupe Quintanilla."

Against the indictment, it is urged that the ommission of the term "corporeal personal property" renders the indictment fundamentally insufficient. In the statute defining "theft," it is said:

""Theft' is the fraudulent taking of corporeal personal property belonging to another from his possession." Article 1329, P. C.

In the same title and chapter it is said: "The term 'property,' includes every article commonly known as and called personal property, * provided such property possesses any ascertainable value." Article 1337, P. C.

In article 1338, P. C., it is said:

"Within the meaning of 'personal property' which may be the subject of theft, are included all domesticated animals and birds, when they are proved to be of any specific value."

In article 1354, P. C., it is said:

"If any person shall steal any cattle or hog, he shall be punished by confinement in the state penitentiary not less than two nor more than for years."

In the case of Hendricks v. State (Tex. Cr. App.) 56 S. W. 55, while meagerly reported, apparently the same point was made and decided against the appellant's contention. In that case, the court said:

"An attack was made on the indictment in the motion for new trial because it does not

110(18)-In- allege that the animal was the 'corporeal' personal property. It is not necessary to so al

dictment for theft of cattle held sufficient. In prosecution for theft of cattle, indict-lege." ment charging unlawful and fraudulent taking of one head of cattle, but omitting the term "corporeal personal property," held sufficient, as equivalent to language used under Pen. Code 1911, arts. 1329, 1337, 1338, 1354.

In our opinion, the language used in the indictment in the instant case is equivalent to that used in the statute.

[2] Against the sufficiency of the evidence,

2. Larceny 60-Evidence held sufficient to it is urged that the ownership was not sufsustain averment of ownership.

ficiently proved. The state's witness found where a steer had been killed and butchered.

In prosecution for theft of cattle, evidence The hide, neck, and feet were found near by.

held sufficient to sustain an averment of ownership.

Appeal from Criminal District Court, Kleberg County; A. W. Cunningham, Judge.

Tomas Garcia and Fabian Fonseca were convicted of the theft of cattle, and they appeal. Affirmed.

E. T. Yates, of Brownsville, for appellants. Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

Circumstances pointed to the presence of two persons at the slaughter. Tracks were followed to the home of Tomas Garcia, where he was found "cutting up the meat." The hide of the dead animal was examined by Quintanilla, who said: "The dead animal that we found was mine. It had my brand on it."

Fabian Fonseca, one of the appellants, testified that he killed the animal, believing it to belong to Tomas Garcia, that his uncle, Tomas Garcia, had sent him for an animal, and that he killed the steer in question, be

(273 S.W.)

lieving it to belong to his uncle. After killing | evidence of confusing the jury on the subject, the animal, he was told by Garcia that they there being no claim that the transaction was would take it and settle with Quintanilla, the a gift or anything save and except a sale. owner. It was picked up and brought to the home of Garcia. On the trial, 'Garcia testified:

"I have heard the testimony of Guadalupe Quintanilla with respect to the animal that

Appeal from District Court, Fort Bend County; M. S. Munson, Judge.

Willie Greer was convicted of selling intoxicating liquor, and he appeals. Affirmed. C. I. McFarlane, of Houston, for appellant.. Tom Garrard, State's Atty., and Grover C.

was killed. Fabian was the one that shot it. I sent him to kill it. I told him that I had two animals in Guadalupe Quintanilla's herd, Morris, Asst. State's Atty., both of Austin, for

and to kill one of them."

The state's theory, supported by circumstances, was that the animal had been slaughtered by both at the place where the hide was found. The contention that the proof of ownership was inadequate we think cannot be sustained.

There was no complaint of the rulings of the court preserved by bills of exception. The judgment is affirmed.

GREER v. STATE. (No. 8888.) (Court of Criminal Appeals of Texas. May 20, 1925. Rehearing Denied June 24, 1925.)

1. Intoxicating liquors 238(1)-Refusal to give peremptory instruction held proper in prosecution for selling.

the State.

LATTIMORE, J. Conviction in district court of Fort Bend county of selling liquor; punishment, one year in the penitentiary. The principal state witness testified posi tively that, on the occasion in question, he bought whisky for which he paid this appellant $2, and that upon her claim that she was entitled to something for going and getting it for him, he paid appellant's codefendant 25 cents. It further appears that when this state witness went to the house of appellant and wanted whisky, it was claimed both by appellant and his codefendant that there was none in the house, but that they could get it for him. The woman, appellant's

codefendant, went out of the house and came back in two or three minutes with the whisky. She handed it to appellant, and he handed it to witness, who paid him as above

Refusal to give peremptory instruction held stated. Shortly after this officers searched approper in prosecution for selling.

2. Criminal law 1091 (11)-Bill of exceptions in question and answer form cannot be considered.

Bill of exceptions in question and answer form cannot be considered, under Code Cr. Proc. 1911, art. 846.

3. Criminal law 814(3)-Not incumbent upon trial court to submit issue unless supported by facts in evidence.

It is not incumbent upon the trial court to submit an issue, unless it is supported by facts in evidence.

4. Intoxicating liquors 239 (2)-Refusal to submit issue of sale for medicinal purposes held proper, in view of absence of evidence justifying such charge.

Refusal to submit issue of sale for medicinal purposes held proper, in view of absence of evidence or claim that liquor was sold for such

purposes.

5. Criminal law 829(1)-Refusal to give requested special charge, on issue covered by court's main charge, held not error.

Refusal to give requested special charge, on issue covered by court's main charge, held not

error.

6. Intoxicating liquors ←239(10)—Refusal to define term "sale" held not error.

In prosecution for sale of intoxicating liquor, refusal to define the term "sale" held not error, where there was no possibility under the

pellant's premises and found in a house in the
yard several containers of large size, each
having in them enough whisky to indicate
what same had contained. Appellant was the
proprietor of a rooming house, his code
fendant was his cook and general manager in
his absence. Both testified for the defense,
Neither claimed to
being jointly indicted.
have gone to any other person or to have left
the premises or to have bought whisky at the
request of the state witness. Both denied
seeing him or being paid any money by him,
or letting him have any whisky on said oc-
casion under any kind of circumstances. In
his charge the learned trial court gave to the
jury an acceptable charge on alibi, and also
told them in another paragraph that if they
believed or had a reasonable doubt of the fact
that defendants, or either of them, procured
the whisky for prosecuting witness, and that
they did not own said whisky, but acted as
the agent of said witness in purchasing same
for him from some other party, then the de-
fendants should be acquitted.

[1, 2] Appellant's first bill of exceptions complains of the refusal of a peremptory instruction, in which there was no error; and his second bill of exceptions is in question and answer form, and, therefore, violative of the provisions of article 846 of our C. C. P., and cannot be considered under many decisions by this court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[3, 4] The third complaint is of the refusal of a special charge, seeking to submit the issue of a sale for medicinal purposes. It is not incumbent upon the trial court to submit an issue unless supported by facts in testimony. Neither appellant nor his codefendant claimed to have sold whisky for medicine,

and the state witness testified that he did not claim that he was sick. He only said that he told appellant that he felt bad and was drowsy. There was no such evidence before the court as to call for the giving of said spe

cial charge.

[5] Appellant's special charge, submitting the theory of agency, was refused because the subject was entirely covered, and properly so, by the court's main charge, which is above referred to.

[6] We find nothing in appellant's complaint directed at the failure of the court to define the term "sale." There was no possibility of confusion in the minds of the jury on the subject. It was not claimed that the transaction might be a gift or anything else save and except a sale.

Believing the facts to support the judgment, and that the record evidences that appellant received a fair trial, an affirmance is

ordered

On Motion for Rehearing

recognizance shall state offense for which conviction was had.

Appeal from District Court, Bowie County; Hugh Carney, Judge.

W. M. Brown was convicted of transporting intoxicating liquor, and he appeals. Appeal dismissed.

Johnson & Waters, of New Boston, for ap pellant.

C. Morris, Asst. State's Atty., both of Austin, Tom Garrard, State's Atty., and Grover for the State.

LATTIMORE, J.

Conviction in district court of Bowie county of transporting intoxicating liquor; punishment, one year in the penitentiary.

The recognizance in this case is defective. It merely states that the defendant stands charged with the offense of a felony, and who has been convicted in "this court of a felony." This is not sufficient. Article 903, Vernon's C. C. P. 1916, provides the form for recognizance on appeal in felony cases, and requires that a recognizance shall state the offense for which conviction was had. Simply to describe it as a felony is bad. The appeal will be dismissed.

Appellant takes issue with us, first, because we did not hold that the trial court erred in refusing an instructed verdict; and, second, in concluding that the evidence did not call for a charge submitting the theory of a sale for medicinal purposes. Both of these matters were discussed in our original opinion. As (Court of Criminal Appeals of Texas. June 10, stated there, the state's case was fully made

SULLIVAN v. STATE. (No. 9203.)

1925.)

as specific as it might be held not ground for reversal.

out by her witness in chief, who testified that 1. Criminal law 1186(4)-That charge is not be bought from appellant and his codefendant the whisky in question. As therein stated, appellant defended wholly upon the proposition that he made no sale, and this defensive theory was cared for in the charge of the court, and decided against appellant's contention. We have again reviewed the testimony for the state, and think it wholly fails to call for the presentation of said special charge.

That charge is subject to criticism is not as specific as it might be held not ground for reversal, under Vernon's Ann. Code Cr. Proc. 1916, art. 743, in the absence of a showing of injury to accused.

2. Criminal law 706-Attempt of prosecution to show by wife of incompetent witness what latter would have testified to held prejudicial error.

Attempt of prosecution to show by wife of incompetent witness what latter would have testified to, had his testimony not been excluded by reason of accused's objection thereto, held prejudicial error, especially in view of remarks of prosecution and judge that the intro

(Court of Criminal Appeals of Texas. June 17, duction of such testimony could have been

1925.)

Bail 66-Recognizance must state offense for which conviction was had.

A recognizance on appeal merely stating

that defendant has been convicted in "this court of a felony," is insufficient; Vernon's Ann. Code Cr. Proc. 1916, art. 903, requiring that a

waived by accused.

Commissioners' Decision.

Appeal from District Court, Cass County; Hugh Carney, Judge.

Joe Sullivan was convicted of burglary, and he appeals. Reversed and remanded.

(273 S.W.)

In prosecution for selling liquor, questioning accused as witness, as to whether he was not under indictment for selling whisky in two other cases, and if he had not been convicted in four liquor cases, held not error, where accused theretofore volunteered information as to such convictions, and to having served in the peni-ceive no error in the action of the court, in