Full opinion text
HARPER, J. Appellant was convicted under a count in the indictment in which it was alleged that appellant did unlawfully and fraudulently receive from Willis Evans and conceal three head of cattle, the property of A. T. Fish, and which said property had theretofore been acquired by the said Willis Evans in such manner as that the acquisition of same comes within the meaning of the term of theft; the defendant well knowing the same liad been so acquired at the time lie received and concealed the cattle. It is thus seen that the count in the indictment specifically charges that Willis Evans stole the cattle from Mr. Fish. The proof shows that Mr. Fish lost three head of cattle — heifers—all branded -¡- on hip and on shoulder. In the record they are particularly described by Mr. Fish and his father. Willis Evans, a few days after the loss of the cattle by Fish, was seen in possession of three heifers that met this description, and the ones he had were branded -¶- on hip and -j-on shoulder. After reading the description of the animals lost by Fish, and the description of the animals seen in Evans’ possession in the Brothers’ pasture by Mr. Ingram, one is necessarily driven to the conclusion that Evans was then in possession of the stolen animals. - At the time his possession was challenged by Mr. Ingram, Evans told him he had bought the animals from a Mr. Gil - lespie over on North Pease river. Appellant was there in the Brothers’ pasture with Evans, and Mr. Ingram says that when the animals were found Evans sold or pretended to sell the animals to appellant, trading them to him for “some cows and $10.” That appellant and Evans then drove the three heifers out of the Brothers’ pasture, of which Mr. Ingram was manager. It is thus seen that when appellant received the cattle from Evans they were branded -p on hip and -p on shoulder. A few days subsequent to this appellant sold some cattle to Mr. Caradine, a butcher. Garadine killed a part or all of the cattle for a barbecue held about that time in Childress county. Garadine sold the hides from the animals he killed to John Scott, who shipped the hides to Finnagin & Go., at Wichita Falls. Sheriff Baceus in investigating the matter went to Wichita Falls, and from a description given him by Mr. Fish selected a hide out of a number in Finnagin & Co.’s house and brought it back. This hide was branded on hip and on shoulder. This hide was positively identified by Mr. Fish as the hide of one of the animals he had lost, by its flesh marks, it being a motley faced heifer, with some white in the face, and a red rim under the eyes. Mr. Baccus and a number of other experienced cattlemen, after inspecting the hide, say that the -p brand had been changed to -j- by burning the brand — extending the line above the top of the -p so as to make a -J-. If this is true, this brand was changed after the cattle came into the possession of StanjSeld, appellant, and would be a cogent circumstance tending to show that he knew they were stolen cattle when they were received by him; otherwise the brand would not have been changed from a -p to a -j~ before they were sold. Taking these circumstances and other circumstances in the record, we think the evidence sustains the verdict, and we overrule this ground of appellant’s motion. However, it is noticed that when Evans’ possession of the cattle was first questioned he told Mr. Ingram that he purchased them from a man named Gillespie over on North Pease river. The court instructed the jury .on circumstantial evidence, and the state insists that this was a sufficient presentation of the issue presented by the testimony, citing a number of cases wherein recent possession and other circumstances were relied on for a conviction, and this court had held that this was a sufficient presentation of the issue raised. But in all those cases it will be noted that when the possession was first challenged no explanation of possession was at that time made. Appellant also says there is a conflict in the decisions of this court, and labors to reconcile the seeming conflict. We do not think there is any conflict in the decisions. In one class of cases the state relied on recent possession and other circumstances in the absence of explanation of possession, and this court held, and still holds, that it was not necessary to give any charge on recent possession, but a charge, on circumstantial evidence was all that was required under such circumstances, for the “recent possession” unexplained is a circumstance with other circumstances in the case to be considered, and it would be improper to single out this circumstance and charge thereon. In the other class of cases, the state relied on possession of recently stolen property, with other circumstances, but in making its proof showed that, when the possession of the person on trial was first challenged, he gave an explanation of his possession, which if true would entitle him to an acquittal. In that character of case we have held, and still hold, that, in addition to the charge on circumstantial evidence, the issue made by the explanation of his possession, consistent with his innocence, must be presented in a separate and distinct paragraph from the charge on circumstantial evidence. Two or three forms presenting this issue have been approved by this court, one in substance the same as that requested in appellant’s charge No. 3, which was refused by the court. Again, we have held that this question might be presented in abbreviated form, that if the jury believed that the explanation was true, or had a reasonable doubt of that fact, an acquittal should follow. Wheeler v. State, 34 Tex. Cr. R. 353, 30 S. W. 913; Mathews v. State, 32 Tex. Cr. R. 357, 23 S. W. 690, and eases there cited. While the different forms used in these cases have both been approved, yet the form used in the Mathews Case has come nearer receiving the unanimous approval of the court. It is short, concise, and presents the issue clearly. Again it is shown that the state'called Willis Evans as a witness. This it had the right to do, for even though he was jointly indicted, yet he would be a competent witness for the state. He testified: “I dc know about the three yearlings in the Brothers’ pasture which Stanfield and I toot out of that pasture. I bought these yearlings on North Pease river from Gillespie. I could not tell you his first name.” This witness then claimed his privilege of not testifying as he was indicted for an offense growing out of this transaction, and he was excused by the court from further testifying as the state intended to prosecute him. There was nothing irregular in these proceedings, and appellant’s criticisms are without merit. However, in another bill it is shown that in presenting the case Mr. Hamilton, of counsel for the prosecution, in his opening argument to the jury argued, as an element of guilt, that the state had placed the witness Willis Evans upon the stand and that the defendant’s counsel had objected to said witness testifying or the state would have thrown more light on the case, which argument the court upon objection did stop, but did not instruct the jury, as requested by counsel for defendant, not to consider the said argument as a criminative fact or circumstance against the defendant, and the said counsel for the state further argued to said jury that said Willis Evans did stand indicted in this same court for this same offense, and though counsel for the defendant at the time objected to this argument for the reason it was out of the record, improper, and prejudicial, the court.declined to stop counsel, but permitted him to continue such argument before said jury. This was improper. No objection appellant could have made to Evans testifying would have been sustained. It was not on appellant’s objection that the witness was excused, but on his (the witness’) plea of privilege, and, after the court had sustained such plea, it was not proper for counsel to tell the jury they “could have thrown moi-e light on the case” if such witness had testified. It is only evidence adduced that can be considered by the jury, and not what could have been adduced if a legal barrier had not been interposed. Again, when Evans claimed his privilege, the jury was not in the room, and it was improper for counsel to tell them that he stood indicted for the same offense. This fact was not in ■ evidence, and counsel in their argument cannot testify to additional facts, and should always keep themselves within the record. No special charge being requested, this might not present reversible error; but, as it will be necessary to reverse the case on account of the error hereinbefore ■shown, we call attention to this matter that such error may not again creep into the record on another trial of the case. In another bill it is shown that when Mr. Ingram was testifying, and had shown that he was in charge of the Brothers’ ranch and pasture, and to the other facts herein stated, he was asked if he had instructions from Mr. Brothers “to keep appellant Stan-field out of that pasture,” and the witness was permitted to answer that he had such instructions. This was improper, and the objection made to this testimony should have been sustained. The motion for a new trial is very lengthy, and there are a number of bills of exception in the record. While we do not discuss them, we have carefully reviewed each bill and each ground in the motion, and hold that none of them present error, other than those mentioned above. But on account of those errors the judgment is reversed, and the cause remanded.