Appellant appeals from a judgment of conviction had in the District Court of Bandera County, on November 30, 1908, on a charge of theft of five goats, the property of Henry Haby. There are a number of questions raised in the record on which a reversal is sought, the most important of which we will discuss.
1. Complaint is made in the brief filed by counsel for appellant that the verdict as copied in the judgment is signed by a person who does not appear to have been a member of the jury trying the case. The following facts appear in the record of the case; the judgment contains the following recital: "Defendant Bud Petty in open court pleaded not guilty to the charge contained in the indictment, thereupon a jury, to wit: H.J. Hermes, Albert Rees, Oscar Gabriel, George Keller, J.W. Anderwald, E.F. Kindla, Ed Fries, Will Thomason, Fletcher Pate, F.J. Riddick, Joe Holt, Lee Humphreys, was duly selected, empaneled and sworn." Thereafter the following verdict is recited in the judgment: "We, the jury, find the defendant guilty as charged in the indictment, and assess his punishment at two years confinement in the penitentiary. (Signed) John Eckhart, Foreman." It will thus be seen from a comparison of the names of those recited who composed the jury that John Eckhart was not a member of the panel, and it is claimed that in this condition of the record it affirmatively appears that the jury trying appellant was not composed of the constitutional number of jurymen by which all parties in felony cases must be tried. Section 13 of article 5 of our Constitution, so far as here applicable, is as follows: "Grand and petit juries in the District Court shall be composed of twelve men." Article 632 of our Code of Criminal Procedure is as follows: "In the District Court the jury shall consist of twelve men. In the county and inferior courts the jury shall consist of six men." Questions somewhat similar to the one here presented have quite frequently arisen and received consideration by this court. The earliest case is that of Rich v. State, 1 Texas Cr. App., 206. In that case the record contained the following recital: "This cause being called for trial, thereupon came the parties, by their attorneys, and announced themselves ready for trial. The defendants, being duly arraigned by the court, and after the reading of the indictment, entered a plea, each for himself, of not guilty. Whereupon the court impaneled the following jury: David Doyles, L.J. Powell, T.B. Scott, Wm. King, John George, A. Brown, W.P. Wolf, J.P. Coffey, J.L. Montgomery, W.P. Lamb, and C.C. Frost, and proceeded with *Page 588 the investigation of this cause." In discussing this matter the court say: "We might, perhaps, be warranted in presuming that each of the jurors named was a competent juror; or if the record had stated that the jury was composed of twelve competent jurors, we might be authorized to presume the clerk had omitted a name in transcribing the record; but in the absence of any such statement, can we, by presuming, supply the omission? and which we must do in order to come to the conclusion that the appellant had been deprived of his liberty by due course of law, as set out in the bill of rights. `The judgment of the court can not depend on speculations or probabilities as to the correctness or accuracy of the transcripts upon which we are required to act. If they are erroneous, it is the duty of the parties interested in, or to be affected by them, to point out their errors, and take the proper steps for their correction. When this is not done, evidently the court must treat and act upon them as being in all things correct as certified by the clerk.' Gorman v. The State,42 Tex. 221." A somewhat similar question came before the court in the case of Huebner v. State, 3 Texas Cr. App., 458. This probably is the strongest case in favor of appellant contained in the books. It is there stated that "The record states that twelve jurors came, etc., but only eleven are named. This, we believe, is fatal to the judgment." In this connection the court uses this language: "Where the record sets out the names of the jurors, and upon an examination there is any less than twelve, unless the record discloses that a less number than twelve was accepted by both parties, or that one or more of the jury were excused under some special provision of law, it is fatal to the judgment." Again, in the case of Morton v. State, 3 Texas Cr. App., 510, the following facts appeared: There the verdict was not signed by anyone as foreman of the jury, and the judgment did not set out and recite the names of the jurors who tried the case. In discussing this matter, Judge White, speaking for the court, uses this language: "Whilst our statute requires the jury to appoint a foreman, in order that their deliberations may be conducted with regularity and order (Pasc. Dig., art. 3076), and seems to contemplate that the verdict in criminal cases shall be in writing, because it provides that, `when the jury have agreed upon a verdict, they shall be brought into court by the proper officer, and, if when asked they answer they have agreed, the verdict shall be read aloud by the clerk,' (Pasc. Dig., art. 3088), yet we know of no express provision requiring the verdict to be signed by the foreman, though that undoubtedly would be the better practice, and it has become, we believe, almost the uniform practice throughout the State. In the absence of any such provision, we think the reasoning of the court in Burton v. Bondies establishes the proper rule.
"In that case Mr. Justice Wheeler says: `We are not aware of any rule of the common law, or of any statute, which requires a verdict *Page 589 to be signed. That is not an ingredient in the definition of a verdict, which is: The answer of a jury given to the court concerning the matter of fact in any case committed to their trial. 6 Jac. Law Dic., 340. And signing is not believed to be a requisite or essential to its validity. Such was the opinion of the Supreme Court of Kentucky in The Commonwealth v. Ripperdon, Litt. Sel. Cas. 195, where they express it as their opinion that there is no law which requires the verdict of a petit jury, either in a criminal or civil case, to be signed; and that it would be, beyond doubt, good without it.' 2 Tex. 203." The law now requires the verdict to be signed by the foreman. Code Crim. Proc., art. 744. In the case of Gerard v. State, 10 Texas Cr. App., 690, the judgment contained the following recital: "Whereupon came a jury of twelve good and lawful men, to wit, and proceeds to set out the names of eleven jurors, and but eleven." The case was reversed on other grounds, but the decision in Rich v. State, supra, was in substance affirmed. There it is given as the individual opinion of Judge Winkler that: "When the record recites the fact that a jury of twelve good and lawful men tried the case, this court would be warranted in indulging the presumption, when but eleven names are set out, that the clerk had omitted a name in making up the transcript, rather than that the judge who presided at the trial had permitted a trial to proceed to verdict with but eleven jurors, and that the recital that the jury was composed of the proper number was false." The case of Stell v. State, 14 Texas Cr. App., 59, was a case tried in the County Court. There, in respect to the facts of that case, the following statement was made: "In the case under consideration the judgment shows, and other portions of the record also make it manifest, that a jury of only five men was impaneled and tried the case, and there is nothing indicating a waiver or consent on part of defendant; on the contrary, it is shown in his motion for a new trial that he did not consent, because he makes it one of the grounds of his motion." In the case of Jester v. State, 26 Texas Cr. App., 369, it appeared that appellant was charged and convicted of the crime of burglary, which was a felony, before a jury composed of six men. In this case the following statement is made by the court: "It appears from the record that the defendant was tried by a jury of six men. Such trial was not in accordance with law, and the conviction must be set aside."
We think the record in the case before us is in some respects different from any of the cases above referred to, and that applying the principles of these cases to the case at bar, a reversal is not demanded by any fair or reasonable construction of our statutes. In this case the judgment recites that twelve men composed the jury, and the names of these men are set out in full. This leaves no doubt of the number of men composing the jury and who they were, and nothing on this point is left to inference or presumption. The only *Page 590 difficulty arises from the fact that the verdict as copied into the record purports to be signed as foreman by one who was not in fact a member of the jury. It is further to be noticed that this matter was not adverted to or noticed in the motion for a new trial; was not questioned or raised by bill of exceptions, affidavit or otherwise. In the absence of some proof, where the judgment recites that the jury was composed of twelve men, and names the twelve men, we think that we should hold that appellant was tried by a constitutional jury, and should and must presume that in copying the verdict the name of the foreman was improperly stated. It would seem to be inconceivable that the District Court would have permitted the verdict to have been signed by someone not a member of the jury, and it is quite as unlikely that appellant and his counsel would have stood by and have suffered in silence a verdict to have been returned signed by a person as foreman who in fact was not on the jury. Such an error in the record or misrecital as this appears to be, could the more easily have been accounted for than the fact that all parties stood by in silence and without protest or objection assented to or permitted the verdict to be signed as foreman by someone other than the triers of the case. Here the record affirmatively shows that appellant was tried by a jury of twelve men. While not essential that it should be done, the names of these men are given. The only irregularity or matter of possible objection is that the verdict appears to be signed by Eckhart, whose name does not appear as one of the jurymen in the case. While this court, and courts generally, have adopted a quite rigid rule in respect to matters of procedure of this sort, we can not feel that we ought in any case assume or presume in the face of the record, which recites the constitutional number of jurymen, by the mere fact that the verdict purports to be signed by another person, that appellant was tried either by more or less than the number of jurors provided by law and required by our Constitution. So to do would place the shadow above substance and follow a bald literalism beyond the confines of absurdity.
2. It is urged that the court erred in admitting in evidence testimony of Henry Haby as having seen in possession of appellant nine other goats than those with the theft of which he is charged. In the bill of exceptions evidencing the action of the court in this matter the court states that this evidence when first offered was not objected to by appellant and was admitted without objection, and that the only point then made was that the State should be required to elect and state for which of the five goats it would prosecute. In connection with this matter it is urged that the court erred in not giving appellant's special instruction touching this matter. This instruction was to this effect: "That all evidence introduced by the State as to the taking of other goats other than the five head charged in the indictment, that is, the five head found at Henry Haby's, if you believe that any were found there, is hereby withdrawn from *Page 591 your consideration and you will not consider any evidence in regard to the finding of freshly marked goats at the pen of defendant by Henry Haby for any purpose." This instruction should not have been given in view of the claim of appellant that he had taken the five goats under mistake of fact. It was proper in view of the mark of Haby — H on the nose or jaw — to show the possession of other animals by appellant belonging to Haby, which had likewise been marked and branded by appellant with a view of affecting the good faith and truthfulness of his claim. As presented, there was no error in the action of the court in either of these matters. If the charge had limited the consideration of this evidence as affecting the issue of intent it should and doubtless would have been given.
3. Again, it is urged that the court erred in overruling the application for continuance made by appellant. This application was made on account of the absence of Davis and Reno, Reno being alleged to reside in Bastrop County, and Davis in McCulloch County, in this State. By Davis it was expected to be proved that the witness Haby had stated in his presence, in substance, that he might have been mistaken as to the goats, and that they may have belonged to appellant. By Reno it was expected to be proven that one Cates, from whom Haby had bought the goats in question, had other goats in the neighborhood, which he sold to an uncle of appellant, and that he had counted these goats about the time Cates left Bandera County, and that there were thirty-three which he had not sold at that time to anyone. The court explains in his explanation of the bill of exceptions that this was the third application for continuance. We think the court did not err in overruling the application. In the first place, the testimony of Davis was a mere matter of impeachment, and beside the same fact had been proven by one William Felts, introduced on the trial by appellant. The substance of the testimony of Reno was proven by more than one witness — not indeed that that was the precise number of goats belonging to Cates unsold, but there were several and at least more than five in the remnant so left by him. This testimony also was merely cumulative, and in view of the fact that it was the third application, it was not of such importance as would have required the court to have continued the case.
4. Again, counsel complain that the court erred in not giving a charge on voluntary return of stolen property. Such a charge was not demanded. It is shown by all the testimony that no offer of return was made until appellant had been found in possession of the property and charged with the theft of same. It is well settled in this State, to constitute the voluntary return of stolen property it must be willingly restored to the owner within a reasonable time, the motive inducing its return being immaterial. A return, however, made after the accused is found in possession of the stolen property, or taken in the act, or after prosecution has been instituted, *Page 592 is not a voluntary return. Stepp v. State, 31 Texas Cr. App., 349; Grant v. State, 2 Texas Cr. App., 163; Elkins v. State, 35 Texas Cr. App., 206; Stephenson v. State, 4 Texas Cr. App., 591.
5. Again, it is claimed that the evidence is insufficient to sustain the verdict. This was essentially a fact case. Among other witnesses, J.N. Word, deputy sheriff, testified that Henry Haby said to him in appellant's presence that he (appellant) had stolen his goats, but has given them up, and further said, "If we will be light on him he won't bother our stuff any more." To this accusation appellant made no reply, nor did he claim that when he took the goats he thought they were part of the J. Cates remnant. Again, L.J. Haby testified as follows: "When Bud Petty and Henry came back with the goats and met me and Word, Henry Haby said, `Bud has admitted that he stole my goats, but he has given them up, and says if we will be easy on him he will not bother any of our stuff any more.' I said, `Hold up there, Henry,' and said to him, `Bud, whose goats are those?' Bud said, `They are Henry's.' I said, `Whose brand is that on them?' `It is mine.' Bud said, `Who put it on them?' `I did.' Bud did not claim that he took them by mistake, thinking that they were a part of the J. Cates remnant." This testimony and much additional evidence made out a clear case of theft. Appellant's claim of mistake of fact is supported by some testimony. This made an issue for the jury. On proper charge they have resolved it against appellant. We could not and ought not to interfere.
Finding no error in the judgment of the court below, it is hereby in all things affirmed.
Affirmed.