Appellant was charged by indictment filed in the District Court of Jefferson County on the 5th day of December, 1908, with the theft of one head of cattle, the property of J.J. Burrell. He was put on trial on April 1, of this year, and as a result thereof found guilty by the jury, and his punishment assessed at confinement in the penitentiary for a period of two years.
The evidence shows that about the time charged in the indictment a cow, the property of J.J. Burrell, marked D.L. on the right hip, was found killed and partly skinned some fifteen miles from the town of Beaumont. Two of the witnesses identified appellant as being at or near the cow when discovered. In a day or two after this two hides were offered for sale by appellant, one of which corresponded in color and in brand with the Burrell cow, with the theft of which he was charged. In addition to this the witness Hebert cut a piece of the hide from the cow's neck, which was left untouched, and this fitted into the hide on which the D.L. mark appeared offered for sale by appellant. All the facts, which we have carefully examined, leave no doubt in our minds of the identity of the cow or of appellant's complicity in her theft. There was some evidence introduced without objection that another cow was found on the same day as the one above referred to, and the two hides were offered by appellant.
1. On motion for a new trial complaint was made that the court should have instructed the jury with reference to the testimony concerning the cow not named in the indictment here, and have required the county attorney to elect as to which cow defendant was on his trial for stealing. As all the evidence shows that the other cow did not belong to Burrell, and as the charge in terms required the jury to find the ownership in Burrell, it is clear that at the time presented there was no merit in this ground of the motion. Again, the court states that he told the jury that they could not consider the evidence of the taking of the other cow as proof of theft of appellant in this case. Nor was there any request for an election, if such request should in any event have been granted.
2. In his motion for a new trial appellant complains that one of the jurors had discussed the fact that he did not testify in his own behalf, and that this was taken by the jury, or at least by one of *Page 647 them, as a circumstance against him. This matter appears in the testimony not of the juror himself, but of one W.A. Johnson, who testified that one Charles Bryant stated to him, in the office of appellant's counsel, that if the defendant had gone on the witness stand and testified in his own behalf, and even if he had stated that he and his family were hungry and he killed the cow in order to get something to eat, that he would not have convicted defendant, but would have acquitted him. It will be observed that this statement does not go to the effect that Bryant admitted such remark was made while he was a juror, but was made after the verdict was returned, and evidently was meant to be understood as declaring, without reference to his guilt, if defendant had stated that he had killed the cow to satisfy the hunger of himself and family, that he would not have convicted him. We do not think the verdict of the jury should be impeached for an idle declaration of this kind made after the verdict is returned and the jury dispersed.
3. Again, it is urged that the court should have granted a new trial in order to secure certain testimony, which it is claimed could be adduced on another trial. This testimony relates to weather observations covering the period of the alleged theft and the opinion of a witness who claimed to have expert knowledge with reference to the period in which putrefaction and decay would set up in a fresh hide. There is no showing made that this testimony could not have been procured by the use of due diligence before the trial or during the trial. It is the duty of all litigants to prepare their cases for trial with reasonable diligence, and courts should set their faces strongly against opening up judgments for newly discovered testimony, except in cases where the existence of such testimony was not known and could not have been discovered by reasonable care and diligence.
As presented, there is no ground shown why the verdict of conviction should not be affirmed, as is now done.
Affirmed.
ON REHEARING. June 15, 1910.