By indictment of the grand jury of Wilson County appellant was properly charged with the theft of twenty head of cattle from T.W. Gilliland, the taking being specifically charged to have been in said Wilson County. The jury found *Page 149 him guilty and assessed his punishment at two years confinement in the penitentiary, the lowest prescribed by law.
The evidence, without the testimony of appellant, was amply sufficient to show that he and his brother, Nelse Witten, stole the cattle as alleged; but, whether they jointly stole them or not, so far as appellant is concerned in this case, that question becomes wholly immaterial, for the appellant testified fully, and he specifically and positively testified that he stole the animals described in the indictment. He also testified that, when this case was first tried, he pleaded guilty under this indictment. How, or in what way, he got a new trial is not disclosed. His sole defense on this trial was that the cattle were not in Wilson County, nor within 400 yards of the line between Wilson and Atascosa Counties, at the time he took the cattle, but testified that they were in Atascosa County, and more than 400 yards in Atascosa County beyond the dividing line between said two counties when he stole them. So that the sole question was whether or not the cattle were stolen in Wilson County, or within 400 yards of the dividing line between that and Atascosa County.
The testimony of the State, and as for that matter the whole testimony, was amply sufficient, if it did not positively and clearly, establish outside of appellant's testimony alone on this issue, that the stolen cattle were in Wilson County at the time they were taken by appellant.
The court, in submitting the case to the jury for a finding in his charge, specifically required the jury to believe beyond a reasonable doubt, with all the other requisites, that appellant fraudulently took the cattle in Wilson County before they could convict him.
In another paragraph of the court's charge he told them on the question of venue that if they believed beyond a reasonable doubt that he alone, or together with another or others, was guilty of the theft of the cattle as charged in the indictment, "and you further believe from the evidence that the original taking of such cattle (if any) was committed in the County of Wilson, or in the County of Atascosa and within 400 yards of the division line between Wilson County and Atascosa County, you will find the defendant guilty." In the following paragraph he told them that if, on the other hand, they believed from the evidence beyond a reasonable doubt that he alone, or together with another, or others, was guilty of the theft as charged, "and you further believe from the evidence that the original taking of said cattle, if any, was in Atascosa County, and more than 400 yards from the division line between Wilson County and Atascosa County, this case can not be prosecuted nor convicted in Wilson County, and you will find the defendant not guilty."
These charges presented the question of venue properly to the jury, and none of appellant's charges on the subject should have been given.
Appellant has several bills of exception as to other matters, but, under the undisputed and uncontroverted facts of this case and the positive and unequivocal testimony of appellant that he stole the cattle, they are all immaterial and pass out of the case. However, we have considered *Page 150 all of them; and, even if it was necessary to pass upon them, they present no error.
The judgment is affirmed.
Affirmed.