The appellant was indicted, tried and convicted of hog theft and his punishment fixed at three years imprisonment in the penitentiary.
The appellant, in his motion for new trial and brief, claims that the verdict is contrary to the law and evidence and without evidence to support it. We have carefully gone over and considered the statement of facts. If the State's witnesses are to be believed, and evidently they were by the jury and trial judge, the evidence is ample and clear to sustain the conviction. If the jury had believed the appellant and his witnesses they should have acquitted him. Under such circumstances, the jury and the court below being by law made the judges of the credibility of the witnesses and the weight to be given to their testimony, this court can not disturb the verdict. It is unnecessary and would serve no useful purpose to give the testimony in this case.
Appellant complains of the charge of the court, as follows: "The court erred in his general charge to the jury wherein he charges: `Now, if from the evidence, you are satisfied, beyond a reasonable doubt, that the defendant, Tom Brown, in the County of Hardin and State of Texas, at any time within five years next before the 6th day of April, 1911, which is the date of the filing of the indictment in this case, fraudulently took from the possession of the said Tom Cravey the hog mentioned in the indictment,' etc.
"Because said charge is misleading and is upon the weight of the evidence, `the hog mentioned in the indictment' was not dead in the month of January, 1910, and the evidence shows that Tom Cravey had the hogs in the pen in January, 1910, and turned sixteen head out at that time and this indictment is for killing one of the sixteen." The indictment was found April 6, 1911. It charged the theft on or about February 15, 1910. The charge of the court above complained of is strictly in accordance with the evidence and the law and is not subject to the criticisms made against it, even if we could consider it at all. Berg v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 884, and Ryan v. State, 64 Tex.Crim. Rep., 142 S.W. Rep., 878.
The next complaint of appellant is that while he was a witness in *Page 21 his behalf he was required to answer questions by the State showing that theretofore he had been indicted for cattle theft and for illegally marking a cow. The court properly charged the jury that this testimony was introduced solely for the purpose of impeaching the credibility of the defendant as a witness, and could not be considered as criminative testimony in this case. No objection was made to this charge. The court properly permitted the State to ask and the defendant to answer the questions. Branch's Crim. Law, section 868.
The only other ground urged by appellant is that "the evidence shows that on the 15th day of February, 1911 (he means February 15, 1910), the date alleged in the indictment, the defendant was working at the saw mill and was not at home during the day. See exs. C. E. Reference is here made to the exhibits hereto attached and made a part of this motion." It seems that to this motion are attached three affidavits, one showing that the books of a certain lumber company shows that one Will Floyd worked as a hand therein from February 1, 1910, to February 25, inclusive, except that he did not work on the 6th, 11th, 13th, 17th, 20th and 24th. The other two affidavits are to the effect that the books of a certain lumber company shows that Tom Brown worked for said company from the first to the 28th of February, 1910, except on the 6th, 13th, 17th, 20th, 27th and 28th, and only part of some other days during said month. There is nothing whatever in the record to show that any of this evidence was newly discovered evidence under the law and the court did not err in not granting a new trial on this ground. Gray v. State, 65 Tex. Crim. 204, 144 S.W. Rep., 284.
The judgment will therefore be affirmed.
Affirmed.
ON REHEARING. June 5, 1912.