Conviction is for cattle theft. Punishment, two years in the penitentiary.
Appellant and Charley Jackson (owner of the alleged stolen animal), are both negroes living in the same community. Jackson bought a cow with a calf about a month and a half old. He kept the calf for more than a year, marking it with two splits in each ear. It disappeared and was gone some six months when it came back to Jackson's premises. It was then apparently marked with one split in the left ear and half overcrop in the right. This was appellant's mark and he claimed the animal as his property asserting that he had raised it. It is not necessary to set out the evidence pro and con relative to identity of the animal. State's witnesses testified that the scars of the original marks were discernible, and explained in detail the appearance of the ears showing where they had been remarked. These were all disputed issues of fact going to establish ownership. The jury was not without evidence to warrant their finding that the animal belonged to Jackson.
We think the court committed no error in refusing the special charges. Where applicable the issues were sufficiently covered by the main charge. Neither do we find basis for the complaint that the charge given was erroneous in limiting the defense to appellant's claim of ownership. The evidence made no other issue.
While the prosecuting attorney was making his closing argument he used the following language:
"Gentlemen of the Jury: If there is a member of this jury who is a member of any sect, organization or clan whose purposes and designs are the more rigid enforcement of the criminal laws of this State, and who believes that the criminal laws have not been and are not being enforced as they should be, you have an opportunity *Page 358 in this case to demonstrate your sincerity to the teaching and doctrine of such organization."
Objection was made to the remark. The bill certifies that no evidence was in the record justifying such a reference, and that appellant's attorney had said nothing in his argument provoking such language. As soon as the language was used the bill shows that "the court then and there stopped Mr. Casey, reprimanded him for using such remarks and language before the jury in very positive language and further instructed the jury, at the request of the defendant, not to consider such remarks in determining their verdict and in no way to be influenced by them; and the assistant county attorney closed the discussion and took his seat." We think in view of the prompt action of the learned trial judge the matter presents no reversible error; especially is this true in the absence of a showing that there were any members of the jury to whom the language might have been of peculiar significance. The facts justified a verdict of guilty and only the minimum punishment was assessed.
The judgment must be affirmed and it is so ordered.
Affirmed.
ON REHEARING. November 28, 1923.