In her motion for rehearing appellant urges that we were in error in holding that the evidence of Cornelia Smith was admissible. Referring to appellant's bill of exceptions No. 3, which sets forth the objection to the testimony of said witness, it appears therefrom that when the testimony was offered and before the witness testified, appellant objected to the whole of her evidence, the objection being as follows:
"That before said witness gave said testimony the defendant in open court duly objected on the ground that any transactions had with the witness Cornelia Smith would be irrelevant, incompetent and immaterial *Page 417 unless a part and parcel of the very transaction at issue mentioned in the indictment, and that it would be going into extraneous offenses in no way connected with the offense alleged in the indictment; that it would be prejudicial and would not be admissible for any purpose, that when said objections were made which were the same objections urged to the testimony of the witness Mary Howell, as in bill of exceptions No. 1, on file herein and made a part hereof."
The trial court necessarily must pass upon an objection at the time and in the manner same is presented; and our duty is merely to decide whether or not the ruling of the trial court so made was corrcet. It was not a valid objection in limine to the testimony of Cornelia Smith that it was "not a part and parcel of the very transaction mentioned in the indictment, and was an extraneous offense not connected with that charged in the indictment." The books are full of cases wherein evidence not a part and parcel of the very transaction charged in the indictment, becomes very material, and in our opinion the action of the trial court in overruling this objection as made must be sustained. Part of the testimony of Mrs. Smith related to transactions occurring the same year as those involved in the theft herein charged, and being of the same character would seem to be admissible as affecting the intent of appellant; on the other hand, part of said testimony relates to transactions occurring some two years prior to the time of trial and may not have been admissible, but inasmuch as the only objection shown by the bill of exceptions related to the evidence as a whole, we must hold the action of the trial court correct in overruling such objection when not leveled at the particular evidence claimed to be remote but at the testimony of the witness as a whole.
There was no evidence tending to show the formation of an intent by appellant to appropriate the money at a time subsequent to her acquisition thereof, and in the absence of some evidence showing or suggesting that her formation of such intent to appropriate was after she acquired the property, a special charge submitting that theory was properly refused.
Nor do we think the evidence demanded the submission of appellant's special charge submitting the proposition that if the relation of debtor and creditor existed between appellant and prosecuting witness as to the thousand dollars involved, that appellant should be acquitted. No evidence was introduced for appellant supporting this contention, and the testimony of the prosecutrix showed without contradiction that the agreement between herself and appellant was that the money of prosecutrix should be taken and invested in the purchase of interests in oil wells, and was to be returned to the prosecuting witness together with the earnings thereof. Nothing appears in the record remotely suggesting the ordinary relation of debtor and creditor between the parties, and the prosecuting witness testified positively that the note for one thousand dollars was sent to her by appellant some days after the money was delivered, and was given by appellant as a species of guarantee *Page 418 of her good faith in the transaction. In a sense every person who defrauds another or unlawfully acquires the property of another, is debtor to such person for said property. We have no doubt but that the courts would so declare, but we do not think such fact would entitle a thief to a charge directing an acquittal if he was indebted therefor to the party from whom he had gotten the property.
There is no question but that in order to make out a case of theft of the character charged in this indictment, the proof must satisfy the minds of the jury that the property which was obtained by the accused with the then intent to appropriate, must have been actually appropriated in pursuance of such intent. The court so charged the jury in the instant case. To our minds the evidence of actual appropriation was amply sufficient.
Believing the case correctly decided, the motion for rehearing will be overruled.
Overruled.