Appellant presents an able motion for rehearing urging the lack of sufficient testimony; also a supplemental motion urging that in regard to the other matters we were wrong in our original opinion. In the latter he first insists that the trial court erred in excusing nine jurors on the ground that they had sat in a companion case against appellant in which the issues were the same, and had returned a verdict of acquittal. Appellant insists that this action of the court was based on a wrongful assumption without proof to support it. Looking to the record, we note that when this case was called for trial, — manifestly before any question of the jury could have arisen, — appellant presented to the court his plea of former acquittal, alleging that the offense for which he was about to be tried, and the offense charged in indictment No. 6348, upon which he had just been tried and acquitted, were one and the same offense, and rested on substantially the same proof. This plea being overruled, and both parties then announcing ready, the question raised in appellant's bill of exception No. 11, towit, the excusing of said jurors, was passed upon by the court, and, as stated in his qualification to said bill, the state having practically conceded that the said jurors sat in a case "where the same culpable facts would occur," we thought when we wrote originally and still think it proper for the court to excuse said jurors. No complaint of any juror who sat on the trial of the case appears.
Appellant being charged with theft of but one head of cattle, the property of Jack Wheeler, and the testimony showing that possession of but one of the three cattle lost by Wheeler at said time was ever traced to appellant's possession, — there can be no question of the correctness of the ruling of the trial court in refusing to notice appellant's contention that the state should have been required to elect as between cattle or transactions. The matter needs no discussion or citation of authorities. We can not conceive how there could be similarity or aptness in the case of Mazureczk v. State, 128 S.W. 136, *Page 57 wherein the allegation was of theft of three sheep and the proof showed theft of six sheep, and possession by the accused of six sheep.
Appellant's wife having sworn that, if the alleged stolen red heifer was in fact found in her husband's possession, it was put in the pen by her brother Sirmon; and Spleetosser having sworn that on the afternoon before the officers so found said stolen heifer in appellant's pen, he saw appellant and one of the Sirmon boys driving three head of red cattle up to appellant's place, it was proper for the court below to submit the case on the law of principals.
The charge on alibi was in form which has often been approved. Nichols v. State, 91 Tex.Crim. Rep.; Hunt v. State, 85 Tex.Crim. Rep.; Soria v. State, 83 Tex. Crim. 343.
The sufficience of the facts is peculiarly for the jury. Two neighboring negroes seem to have lost cattle about the same time. Both of these men have died since such alleged loss. The case here involved charged the theft of one red heifer belonging to Jack Wheeler. Said animal disappeared Wednesday or Thursday and was found in an enclosure near appellant's house Friday night. As far as we are informed by the record, the nearest residence, aside from that of Spleetosser, was a mile from the residence of appellant. The animal's ears had been cut, and its mark defaced. According to three state witnesses appellant's wife demanded that the officer not take said alleged stolen cattle, that they were hers, bought with her money. Appellant was at home with his wife when the officers arrived. Apparently no one else was there save appellant, his wife, and their children, to whom she referred in her testimony as "My babies." She also swore that appellant left their home with two other men, whom she said were present as witnesses, on Thursday afternoon to go to Houston, and that appellant did not get back until 10 o'clock Friday night. None of the parties referred to testified for the defense on this trial. Officers seem to have been on the road over which she said appellant came home Friday night at or about the time he should have come along. They testified that no truck passed them. Appellant's brother lived about a mile from him. We think it not necessary to further state the testimony. The presence of no other person at the home of appellant when the cattle were found on the night of their discovery, save as above indicated, fully appears. The case does not rest on the fact alone of the finding of the cattle in appellant's lot. *Page 58
We think the original opinion correct, and the motion for rehearing is overruled.
Overruled.