The opinion
Appellant complains in his motion that we did not discuss his fifth bill of exceptions. Examining same, we note that one Woody testified that about 1:00 or 1:30 p. m. on March 20, 1935, he was at McVickers filling station and saw appellant pass there with a Jersey cow in a trailer. Woody made no effort to describe the cow. We do not approve what the district attorney said when he criticized appellant for not using McVickers as a witness, as we stated in our former opinion, but in view of the prompt action of the trial court in sustaining appellant's objection and instructing the jury not to consider the statement of the State's attorney, or anything else not based on testimony, this would seem ample protection of appellant's rights in regard to this matter.
We did not discuss the facts at any length in our former opinion. Mr. Davis, owner of the alleged stolen cow, lived in Hood County a few miles from Granbury. He bought a dark brown Jersey cow from Lanham for $32.00. On Saturday before this cow was stolen on Tuesday night, this appellant was at Mr. Davis' home, looked at this cow, watched Davis milk her, and tried to buy her for $12.50, which Davis refused. Appellant had also been by the place the day before and looked at the cow, and said then he wanted to see her milked. It was in proof that appellant had a two wheel trailer; also that the party who stole the cow on the night of the 19th used a two wheel trailer. The tracks made by the car and trailer at Mr. Davis' house were observed as were also the tracks made by appellant's trailer at his home at the time of his arrest. Sheriff Newman, who made the examination, testified that the tires on appellant's trailer "would make the same kind of imprint *Page 655
and impression on the ground" as those observed at the Davis home. Mr. Newman located the lost cow at appellant's house shortly after it was taken. He pointed her out to appellant and asked him where he got her, and appellant told him he had had her two or three years, had practically raised her. The cow was freshly dehorned and branded. Later when the owner of the cow asked appellant where he got her, appellant said he bought her in Cleburne. Appellant seems to have been a sort of dealer in cattle, and the finding of said cow in his possession so soon after her disappearance, in view of his desire to acquire her, and his knowledge of the cow, together with his false statements as to how he got her, give ample support to the verdict.
We see no error in the refusal of appellant's special charge No. 1, which reads as follows:
"Gentlemen of the Jury: You are instructed that you will not consider against the defendant any evidence showing that the defendant has previously been indicted and tried for the offense of theft in Somervell County. Such evidence shall not be considered by you even as a circumstance against the defendant in this case."
Such a charge is not one of limitation but of exclusion, and is as though appellant had asked the trial court to tell the jury not to consider evidence before them of materiality sufficient to justify its admission. The cases cited by appellant in his motion for rehearing support no such proposition of law as is here involved. Appellant also complains that we erred in our disposition of his bill of exceptions No. 7. We see no need for further discussion of the matter, which was considered and properly disposed of in our original opinion. Appellant's brother, as a witness in his behalf, did not affirm that he saw appellant load the cow in question from a trailer to his own in Cleburne on March 20, 1935; nor did appellant testify that such was a fact. Appellant did not testify at all, and his brother wholly failed to say that the cow he saw at Cleburne was the cow in question, notwithstanding the fact that she was at the home of her owner near Granbury and easy of inspection at the time of the trial.
Not being able to agree with appellant, the motion for rehearing is overruled.
Overruled. *Page 656