The record having been perfected, the appeal is reinstated and the case considered on its merits.
On the 19th of March, 1935, a brown Jersey cow was stolen from L. E. Davis. On the night of the 27th of March, 1935, said cow was found by W. C. Newman, a deputy sheriff, in *Page 651 appellant's cow lot. Mr. Newman testified that when he questioned appellant concerning his possession of the cow he stated to him he had practically raised said animal. After talking to appellant the witness left and later returned with Mr. Davis. Again being questioned as to where he got the cow, appellant stated that he had bought her in Cleburne from some man unknown to him. Said cow had been dehorned and there were bloodstains in a trailer owned by appellant.
Appellant did not testify. However, he introduced his brother, who gave testimony to the effect that he was in Cleburne on the 20th of March, 1935, and witnessed a transaction in which appellant bought a yellow Jersey cow. The witness did not know the name of the man from whom appellant made the purchase. Appellant's wife gave testimony raising the issue of alibi. Many witnesses testified that appellant's general reputation for honesty and fair-dealing was good.
In cross-examining appellant's character witnesses, the district attorney elicited from them the fact they had heard that appellant had been indicted in Somervell County for cattle theft. Upon redirect-examination appellant developed the fact that after a trial he had been acquitted of said charge. Moreover, he proved that he had been acquitted because the evidence showed the animal he was alleged to have stolen was in fact his own property. These matters were uncontroverted. Appellant presented a requested instruction to the court which would have advised the jury that the testimony as to the former indictment was not to be taken as a circumstance against him. The court declined to give the instruction. As already stated, appellant not only proved he had been acquitted, but showed that the animal it was alleged he had stolen was in fact his own property. Under the circumstances, we are unable to reach the conclusion that said testimony could have exercised an improper influence on the jury.
It is shown in bill of exception No. 7 that appellant's brother testified that he was in Cleburne when appellant bought a Jersey cow. He testified further that the reason he remembered the occasion was that he had bought some merchandise from a named merchant and had given him a check for five dollars in payment for same; that said check was dated March 20, 1935, and was drawn on the First National Bank of Granbury, and was paid by the bank. Also, the witness testified that on the same date he gave a check in the sum of eight dollars to another merchant in payment for some furniture, and that said check was dated March 20, 1935, and drawn on the *Page 652 First National Bank of Granbury. In his argument to the jury the district attorney said: "The two checks A. G. Baker (the witness) gave in Cleburne may have been post dated. There is no evidence when they were paid by the bank, or when they were deposited for collection." At this juncture, appellant offered in evidence the checks given, together with the indorsements thereon. The district attorney's objection was sustained. In qualifying the bill of exception, the court states that the contents of the checks were already in evidence. In bill of exception No. 2 it is shown that said checks were offered during the time the witness Baker was testifying. In qualifying said bill the court made the following statement:
"Defendant's counsel proved by said witness the dates of the checks, the date he gave them, the amounts, what they were given for, and the endorsements showing they were paid; the contents of the checks was fully given, and the objection by the district attorney as to the immateriality and burdening of the record, after the contents having been admitted orally, was sustained by the court."
Manifestly, as qualified, said bills fail to reflect reversible error. As to bill No. 7, no objection was made to the argument of the district attorney.
It is shown in bill of exception No. 8 that appellant excepted to the charge of the court for its failure to instruct the jury that before he could be convicted they must believe he was a party to the original taking. An examination of the charge discloses that the court instructed the jury to acquit appellant if they entertained a reasonable doubt as to whether he purchased the animal in question. Moreover, the court instructed the jury that they could not convict unless they believed beyond a reasonable doubt that appellant stole said animal. In our opinion, the charge of the court adequately protected appellant's rights.
The argument complained of in bill of exception No. 5 was as follows: "The witness Woody testified that he was at Will McVicker's place when the defendant came by McVicker's place on the afternoon of March 20, 1935. Why did they not put him on the stand? Why didn't they do it? They were afraid we have his record." The court sustained appellant's objection to the argument and promptly instructed the jury not to consider it for any purpose. In the light of the record, we are of opinion the bill fails to reflect reversible error.
Appellant excepted to the charge of the court for its failure to embrace an instruction on exculpatory statements. Appellant *Page 653 made contradictory statements at the time his possession of the stolen animal was challenged. The deputy sheriff testified that he first stated to him that he had practically raised the cow, but later said that he bought her from a man in Cleburne. The court instructed the jury, in effect, to acquit appellant if they believed that his explanation accounted for his possession in a manner consistent with his innocence, and that said explanation was reasonable and probably true. The facts reflected by the record are similar to those in the case of Dixon v. State, 83 S.W.2d 328, in which case it was held that the failure to charge on exculpatory statements was not error. See, also, Hays v. State, 84 S.W.2d 1008.
It is shown in bill of exception No. 6 that the district attorney, in argument, criticized appellant for not placing Monroe Deavers on the stand. Appellant's counsel interrupted the district attorney and stated to the court that Deavers was not in attendance on the court and that his absence was due to no fault or lack of diligence on the part of appellant. Counsel then requested the court to permit him to introduce in evidence the sworn application of appellant for a subpoena for said Deavers. The court declined this request. We think the statement counsel made to the court in the presence of the jury, as set out in the bill of exception, was sufficient to apprise the jury that appellant had sought the presence of the witness and that it was not his fault that he was absent from court. Art. 643, C. C. P., provides that the court shall allow testimony to be introduced at any time before the argument is concluded if it appear that it is necessary to a due administration of justice. In construing said article, this court has declined to reverse cases for the refusal of the trial court to reopen the case and permit the introduction of further testimony unless it has appeared that, under all of the circumstances, the appellant, without fault on his part, had been prejudiced by such refusal. Heidingsfelder v. State,81 S.W.2d 510, and authorities cited. The decisions are to the effect that if there is no reason to believe that the evidence proposed to be offered was of a character to materially change the state of the case favorably for the accused, as it then stood before the jury, it will not be held that there was an abuse of discretion in declining to reopen the case. Heidingsfelder v. State, supra. As already stated, the jury heard counsel for appellant state that he had sought the presence of the witness. Further, they were aware of the fact that counsel was seeking to introduce in evidence the sworn application of appellant for a subpoena for *Page 654 said witness. Under the circumstances, we think there is no reason to believe that the introduction of the subpoena would have changed the state of the case favorably for the appellant as it then stood before the jury. Hence, we are constrained to hold that the bill fails to reflect reversible error.
A careful examination of appellant's contentions leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.