The judgment in this case was affirmed at a former day of this term, and it now comes before us on motion for rehearing. Among other things, appellant insists that we overlooked the eighth paragraph of his motion for a new trial, which questions the charge of the court on theft of other property. His objection is as follows: "Because the court erred in paragraph sixth of his charge, wherein he tells the jury that they may consider the evidence establishing other offenses for the purpose of tending to connect the defendant with the theft herein alleged." Appellant's contention here is that there is no evidence of contemporaneous theft. An examination of the record, however, discloses that, in the confession of appellant, testified to by *Page 43 Sheriff Clark, he admitted to him that he and Elzie went down and caught this Dillin mule; then a mare; then Sam Schultz' mule. He also said that Elzie told him at the time they were catching the males that he did not know who owned the two mules. He also said that they left the horses at Tip Isham's, changed saddles, crossed the river, traveled all night Wednesday night; got to Argyle about daylight, and got breakfast; arrived at Denton Thursday; that Elzie traded one of the mules for a horse near Denton; and, that hey got to Gainesville that night. He also said that Elzie sold all the mules, and was to give him half the money. He further stated that they got all the stock on Wednesday night, and started to Gainesville on the same night, and that they caught the mules on the Harrison place. If this statement to the sheriff be true, then, evidently, defendant admitted to him the theft of two other animals on the same night, under circumstances which would make the theft of the other two animals contemporaneous with the theft of the mule alleged to have been stolen. True, the owners of the other two animals were not produced; but defendant's own confession admitted the fraudulent taking of said animals, and the court certainly could not be said to have given a charge to the injury of appellant, when the instruction complained of limited the testimony to its proper purpose. We think, if the court had failed to do this, there might be some ground for complaint on the part of appellant. The other questions were disposed of in the original opinion of the court. The motion for rehearing is overruled.
Motion overruled.