Appellant strongly urges error in our conclusion that the taking of melons from the patch, is not theft under the present law, and that the killing of a person who was in the act of taking such melons from the patch, was not justifiable homicide under Article 1105, Vernon's P.C. It is also insisted that the case of Grant v. Haas, 75 S.W. Rep., 345, was not correctly interpreted by us, and that same is authority for the contention of appellant that taking melons at night is theft. We have again examined said authority carefully. The statement therein that Article 790 of the Penal Code of 1895 makes the theft of melons a misdemeanor, is wholly erroneous, and the sequent reasoning of the learned court, based on such erroneous conclusion, must fall with the false premise. Article 790, Penal Code 1895, makes the taking of melons a misdemeanor, but not theft. What we have just said about the case of Grant v. Haas, and other cases cited by appellant, led us in the opinion herein to say that the question of whether taking melons was malicious mischief or theft, was not raised or discussed in said case, or the others cited, and that the expressions of the courts in any opinion must be construed in the light of the facts and issues in the individaul case then under consideration. We further observe that we have no authority to overrule a decision of the civil courts, however much we might differentiate or decline to follow any opinion therein rendered. We can go no further than to say that the issue now made in the instant case, as to whether the taking of melons from a patch is theft or malicious mischief, was not before the courts rendering the opinions under discussion, and that we decline to be bound by the announcement of said courts if based on a mistaken view as to the character of offense made by said Article 790, which is present Article 1234, Vernon's P.C.
We also regret that we cannot agree with distinguished counsel for appellant in their interpretation of Sparks v. State,76 Tex. Crim. 263, 174 S.W. Rep., 351. In that case Sparks was convicted of felony theft, the property taken being an automobile of the value of $1,000, and the prosecution being under the general statute making it felony to fraudulently take property of the value of more than $50. The sole question on appeal in said case was whether by a later Act of the legislature, making the theft of an automobile of the value of $35 and over a misdemeanor, the general law of theft was in effect repealed as to such automobiles so that the prosecution for felony therein must fall, and a conviction therefor be reversed. The court so held in said case. This is the same principle here announced by us. Mr. Black, in his Interpretation of Laws, Chapter 4, Sec. 53, says that if two legislative Acts are positively repugnant so that they cannot be reconciled and made to stand together by any *Page 634 fair and reasonable construction, then the one last passed will control and will repeal the earlier law. As we understand it, it makes no difference whether the later law be more or less specific or general, the effect of utter repugnance in the two being the same in either case. In the Sparks case, supra, the prior law forbade the taking of any and all property over $50 in value, under pain of felony penalties. The later enactment under discussion took from the general list of such property, automobiles, and decreed as to them, if of value of more than $35, that such taaking should only be a misdemeanor, and this court held that the later law must prevail and be that under which the accused should have been tried. In the instant case the prior law made the fraudulent taking of melons, with intent to appropriate same and to deprive the owner of the value, theft, punishable by imprisonment and fine, or by penitentiary confinement as the value might appear. The later enactment, being Article 790, supra, decreed that the taking of melons, fruits, vegetables, etc., from the farm, orchard, garden or vineyard of the owner without his consent, should be a misdemeanor punishable only by a fine not exceeding $100. The taking referred to in the later Act, was without qualification and necessarily included all taking when from the orchard, vineyard, field or patch. This manifest inclusion of all taking under the terms of the later Act, must be held to evidence the legislative purpose to make the taking of melons, etc., punishable only as there prescribed, and as to the articles therein named, to repeal the prior theft law.
Nor can we assent to appellant's proposition that after the Act of 1913, — which was the later law under discussion in the Sparks case, supra, — was amended by Chapter 105, Acts Regular Session, 1915 (which amendment merely eliminated from said law the word "steal"), that said law became and now stands on a parity with and is similar in effect to Article 1234, supra. Said law as amended by legislative Act of 1915, is now Article 1259a. Vernon's P.C. and was held by this court in Hunt v. State,89 Tex. Crim. 89, to refer only to one who, without the consent of the owner of a car, takes same and drives or operates it on or in, one of the public places named therein. The character of taking contemplated by said article, is not permanent but temporary, and we do not think same was intended to supersede or repeal, as applicable to automobiles, the law of theft, either felony or misdemeanor.
Appellant also urges that we erred in holding to be of no injury, a statement volunteered by witness Emilia Rodarte, wife of Garcia, the employe of appellant who fired the fatal shot producing the homicide complained of in this case. Said witness on cross-examination by appellant is shown by bill of exceptions No. 10 to have volunteered the statement, "Since my husband was arrested Mr. Espalin went over to see the watchmen down there, and told them if the sheriffs would come over there and ask them about the orders he had given, to say that he had given such orders as those Mr. Jose Mosqueda *Page 635 said, instead of going and saying what was not the truth we would do — and he went." It appears from the bill of exceptions that said statement was first made in Spanish to the interpreter, and that before being interpreted the objection was made that said answer was not responsive, and it is stated in said bill that the trial court understood the Spanish language, "sufficiently so that it was evidenced that said testimony was not relevant," but that the court permitted said answer to be interpreted and then sustained appellant's objection, and instructed the jury not to consider same. We understand from the bill of exceptions, approved without qualification, that the court below did understand the statement made in Spanish, and were of opinion that if this was true, the court below should have sustained appellant's objection on the ground that the answer proposed to be interpreted, was not responsive. Granting which error, we were called upon to say whether same was such as that the matter complained of might have resulted in injury to appellant. There is nothing contained in the bill showing any surrounding facts either before or after the objectionable statement of the witness from which we are enabled to conclude any circumstances for or against same. The most we could make out of said statement, as detailed in the bill, was that after the husband of witness was arrested appellant told the other watchmen in his employe that if inquiries were made of them by the sheriffs they should tell the officers that he had given to them orders such as Jose Mosqueda said, instead of going and saying what was not the truth. We are not apprised by the bill what kind of orders Jose Mosqueda said or anything relative thereto, and if appellant told the other watchmen not to go and say what was not the truth, this would have been commendable and could not have hurt his cause. We are bidden by all the rules to find out from the bill of exceptions presented to us what wrong was done, or injury, if any, inflicted, in the matter complained of. We find ourselves after a careful review of this matter of the same mind as before, — that no injury is shown.
We do not think the statement by the prosecuting attorney in which he referred to the appellant as "this killer" of such inflammatory character as to call for a reversal. It was shown by the evidence that appellant had been indicted at a former time for murder, and it was in testimony by Garcia and his wife that appellant told Garcia to shoot to kill any person who might come over his fence. We cannot see anything so prejudicial in the use of the words indicated as to injure the rights of the accused.
Finding no matter in the motion which leads us to conclude we were in error in our former judgment, the motion for rehearing will be overruled.
Overruled. *Page 636