Appellant says that we erred in our disposition of his complaint of the reception of evidence that he had been incarcerated in the Dawson County jail, and insists that he testified sufficiently showing that no indictment was returned against him after being complained against in said county. Appellant's testimony in this regard given in answer to a question apparently as to whether he had been confined in jail in Lamesa, was as follows: "I was carried to Lamesa and served a term in jail there for swindling. I had just one complaint filed against me at Lamesa for swindling. That after I came back here. There was no indictment returned against me there." There is nothing in the record, or in the testimony quoted, showing that the complaint referred to was one made before a magistrate as the basis for a preliminary hearing. A prosecution for misdemeanor swindling in the County Court punishable by confinement in the county jail might be upon complaint and information, and there would have been no necessity for an indictment. Proof of the fact that one had served out a term in jail for swindling, based upon a complaint in the County Court, would be admissible, when the object of such proof was to affect the credibility as a witness of the party referred to.
We have again reviewed the record in the light of appellant's insistence that his claim of right to take and dispose of the property charged to have been stolen was not sufficiently presented to the jury in the charge. The special charge referred to in our former opinion, which was prepared in language evidently deemed sufficient by appellant's counsel, seems to us to closely follow and adequately present the theory upon which such claim of right could have been based, if at all.
The motion for rehearing will be overruled.
Overruled. *Page 343