Both appellant and the state have filed motions for rehearing, and the case has been considered again as carefully as we are able, and we will restate the facts and the various propositions advanced.
The pasture of appellant's father and that of Jones, joined, and cattle seem to have gotten from one to the other. Mr. Long had charge of the Jones' cattle and pasture, and was the alleged owner of the cattle charged to have been stolen. On July 30, 1930, Long was in Montalvo's pasture and found three calves tied to a tree, which he recognized as belonging to Jones. Hearing a cow bawling along the Jones' fence, he turned her into Montalvo's pasture and she went straight to the calves, and when he presently left, one of the tied calves, a brindled bull calf, was sucking this cow which belonged to Jones and bore his brand. Mr. Long went to town, got two officers and the party returned about an hour later to where the cow and calves were left, but found that during this time the calves had been moved and the cow killed. Her body was still warm. Her calf was tied in a thicket not far from the cow's body. The party remained near the place until about noon of the next day, when a wagon appeared in which were appellant and Juan Garza. When appellant and Garza got near where the calf was tied and could see it was still there, they went to the body of the cow. One of them said, "Yes, there she is," and they then circled back to where the calf was tied, and, without setting out details, acting together they both got the calf into the wagon and tied it down. While so engaged the officers and Long walked up to a few feet of said parties. Appellant saw them, stood up, took a deep breath, and said in Spanish to Garza "They have caught us." Garza asked who, and appellant replied "The officers." The sheriff said to appellant "Frederico, I am surprised." Appellant said "You are just in time, we are gathering our cattle, we are marking and branding our cattle." The sheriff said "Yes, looks like you are handling somebody else's cattle, — Mr. Jones' cattle." The sheriff then walked with appellant over to the body of the dead cow and asked appellant who killed her. Appellant at first said that Garza did, but changed his statement and said "I will tell you the truth, I killed her and Juan roped her and put her in this thicket for me." The sheriff asked him if he knew whose cow she was, and appellant said "Yes, she belonged to Mr. Jones." The sheriff asked what her brand was and appellant stooped and wrote on the ground "VI," which was Mr. Jones' brand. The sheriff testified that appellant *Page 531 first said he shot the cow, but when asked what with, he then said he knocked her in the head with a hatchet. He was then asked why he killed the cow and stated that when they were DRAGGING THE CALVES she was bawling too loud, making too much noise, and he killed her to get her out of the way. The officers took appellant and Garza to the Montalvo ranch house where they found five head of calves in a pen, two of the calves being those which Long had seen tied with the brindled bull calf at the place where the cow was killed and to which appellant and Garza came at the time of their arrest. These calves were turned into Jones' pasture, and some of them were later seen in said pasture sucking their mothers, which were Jones' cows. Mr. Taylor, the sheriff; and his deputy, Mr. Barfield, and Mr. Long all testified and were the only witnesses before the jury. Appellant introduced no testimony.
There are six bills of exception. The first complains of the refusal to change the venue. Nine state witnesses swore that a fair trial could be had by appellant in the county of the prosecution. Appellant's father and another were the only defense witnesses heard on this question. Appellant's father said he doubted if a fair trial could be had. The other witness thought it could. The bill shows no error.
Refusal to continue the case was made the subject of another bill of exception, but the record shows that on hearing of the motion for new trial the state introduced testimony to the effect that the only witness named in the application for continuance had appeared before the grand jury which investigated this case and testified directly contrary to the averments in the application. This bill shows no error.
Bill of exception No. 3 complains of the reception of testimony of what was said by appellant to the sheriff when found in possession of one of the stolen animals and near the body of the cow that was killed. Clearly this was res gestae of the offense and admissible.
The next complaint sets out a half page of the testimony of the sheriff, in substance, that when they got to Montalvo's ranch house they found some calves in a pen which they took and turned into Mr. Jones' pasture, and that witness subsequently saw one of these calves sucking a cow belonging to Jones. The objection to said testimony was as follows: "To all of which testimony appellant objected because the stealing of said cattle, if stolen, was a separate transaction with which defendant's connection was not shown, and this was prejudicial to appellant." It is impossible to read this record and *Page 532 not be convinced that appellant and Garza participated in the simultaneous taking of three head of cattle belonging to Jones, two of which were among those found by the officers at the ranch house after appellant's arrest; also, that on the day following the taking of these three head appellant and Garza took and killed another head of cattle belonging to Jones. The objection in the bill was to the testimony as a whole. The testimany relating to the two calves other than the brindled bull calf, and the finding of same in the pen at the Montalvo ranch house, as well as the testimony relating to the killing of the cow, was a necessary part of the development of the state's case, regardless of which one of the animals might have been deemed the one head referred to in the indictment. No error appears in this bill. The same is true of the complaint in bills of exception Nos. 5 and 6 presenting objections to the testimony of Mr. Barfield and Mr. Long upon the same points.
Appellant presented a number of special charges, only one of which we deem necessary to discuss at all. Appellant's special charge No. 4 is as follows: "Gentlemen of the Jury: If you believe from the evidence that an explanation made by the defendant as to his possession of one head of cattle alleged to have been stolen was consistent with his innocence and that such explanation was reasonable and probably true and accounted for his possession in a manner consistent with his innocence, such explanation should be considered as true, or if you have a reasonable doubt as to such matters such explanation should be considered as true and you must acquit the defendant, unless the State, by competent evidence, has proven the falsity of such explanation, and unless you believe that the State has, by competent evidence, proven the falsity of such explanation, or if you have a reasonable doubt as to whether or not the State has proven the falsity of such explanation, you must consider such explanation as true and acquit the defendant." Manifestly such charge was inapplicable to the facts, was confusing, and an incorrect statement of the law. It is impossible to tell to what statement of appellant reference is had in the charge referred to. His first statement when he saw the officers, which was heard and testified to by them, was: "The officers have caught us." It is also true that two of the stolen calves had been moved from where they were tied, evidently by appellant and Garza, not more than an hour before the officers and Long came back to where the dead body of the cow was lying. It is also true that near the body of this cow was her calf. Was appellant talking about the calf in the wagon or its dead *Page 533 mother near by, or the two calves already taken by him and Garza to their pen, or the other three calves of Jones which were already in the pen? He made no application of his statement, nor do we see how the jury would be authorized to do so. No one asked him to explain about the dead cow, or the calf in the wagon, or the other five calves in the pen. The sheriff merely said, "I am surprised." Appellant admitted in the same statement then made that he killed the Jones cow to keep her from interfering while they removed her calf. He made no claim to the calf in the wagon either then or at any other time, nor to any of the other animals referred to. The case was not one on circumstantial evidence in which the state was relying only on the circumstance of possession of recently stolen property. In fact, Mr. Long, the alleged owner of the stolen animals, saw appellant engaged in the appropriation of the calf that was in the wagon. It might also be said that in no case should a jury be told, as appears in the special charge referred to, that if "they have a reasonable doubt whether or not the State has proven the falsity of such explanation," they must acquit. Of necessity the jury would have a reasonable doubt as to whether the state had or had not, but the accused can not in any case claim the advantage resulting from such doubt, no matter which way the doubt lies.
The state's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.