Grooms v. State (278 S.W.2d 309, 1955)

DICE,' Commissioner.

The offense^ is .theft of one goat; the' punishment, Two years’. confinement in the penitentiary..-..

The ’ State’s testimony shows that the prosecuting witness, Nolan Mesecke, was a dealer inMivestock and 1 operated a commercial feed yard in the City of. San Angelo,where ¡hq.kept ¡goats, sheep and cattle. .

Mesecke testified that on the late afternoon of. August 30, 1954, while he was at his place of business he. heard a goat bleating;’ that he then saw a man whom he identified as Buck Spurger in a pen chasing a goat and handing, one of his (Mesecké’s) goats over the fence to appellant; that as appellant was carrying the goat from the pen towards a car with a door open parked some thirty steps away, the witness, jumped over the fence and asked the two what they were doing, to which appellant replied, “We are trying to put this goat back in the pen.” The goat was then turned loose and the three proceeded to chase it, and during the chase, appellant’s compánion, Spurger, stated to the witness, “I am glad you caught the goat; we sure would have, killed that goat tonight; just a little short of groceries and needed something to eat.” The witness further testified that he did not.knoyr of any of his goats ever haying gotten out of the pens and that he had not given appellant or his companion authority to take the goat out of the pén.' ■

Appellant, as a witness in his own behalf, denied that he and his companion, Spurger, were trying to1 steal the goat. He testified that on the occasion in question they had stopped to urinate and that the goat was loose and bleating; that he and his companion had not touched the goat before he helped Mesecke pen the goat.

Appellant’s witness, Clyde Cockburn, testified that he had a place of business near the Mesecke stock pens and that on two or three occasions he had seen goats roaming ■ in- .the neighborhood, but did, not know to whom they belonged.

There are no formal bills of exception or objections to the court’s charge.

-.There is. indexed in the statement of. facts an informal bill of. exception .which relates to • certain testimony given by the State’s witness Mesecke. .

The record shows that while the witness, Mesecke, was testifying on direct examination, he was asked the folldwin'g question : “Did anything unusual • happen out there on'the evening- of August 30, 1954?” to which he answered, “Yes, that is when* I caught the hoys getting the goat.”- There-: upon appellant’s counsel made the following objection which was by the court overruled:

“We object to .the answer and ask. it be stricken from the record. T caught 'the boys stealing the goat,’ that is.a conclusion; it is not called for in the question, and we ask the jury be instructed not to consider it.”

We perceive no error in the court’s ruling. The answer of the witness was that he caught the boys “getting the goat” rather than “stealing the goat,” as understood by appellant’s counsel. Such testimony was not a conclusion of the witness and was responsive to the question propounded.

'We find the evidence sufficient to suppo'rt the conviction, and ho 'error appearing' in the record, the judgment is affirmed.

Opinion approved by the Court.