Appellant Tom Jones and one Wren Talbot were jointly indicted for the theft of a horse, the-property of one J. T. Cameron. When the case was reached on the docket for trial they both appeared, in person and by attortorney, and announced ready for trial, the defendant Wren Talbot pleading guilty, and appellant Tom Jones pleading not guilty, no severance being had or applied for. After hearing the evidence, argument of counsel and charge of the court, the jury returned a verdict of guilty as to both defendants, affixing the punishment of Talbot, who had pleaded guilty, at five years imprisonment in the penitentiary, and the punishment of Jones, who had pleaded not guilty, at imprisonment in the penitentiary for ten years. Judgment was rendered in accordance with this, verdict, and Jones appeals.
One of the main grounds earnestly argued and insisted upon, as a reason why the verdict and judgment should be set aside, is the difference made by the jury in the punishment they have *94assessed, the evidence being the same, and the only difference in the two cases being that the one pleaded guilty, the other not guilty. It is substantially insisted that, supposing for argument’s sake both to be guilty, the verdict upon its face is inequitable, unjust and excessive as to Jones, who, under the evidence, was deserving of no more or greater punishment than his co-defendant Talbot; that this excessive punishment must have been imposed by the jury from mere wantonness or caprice, as an additional infliction upon Jones, solely because of his persistent •contumacy in exercising one of the inalienable rights of a citizen to declare and defend his innocence when charged with crime; and that a party has no.t entirely forfeited his right to mercy by protesting his innocence, even though he may be conscious of his guilt.
This position is- quite plausible, and while the written argument of counsel in support of it is as persuasive as it is ingenious, we are unable to see how we are authorized to consider the question, much less declare it a reversible error. It may be true that the jury felt outraged that Jones should, in the face of the •evidence, deny his guilt and use all the means and appliances furnished by the law to try and establish his plea, or at all events to create in their minds a reasonable doubt as to his guilt; and this feeling may have induced them to slack the mercy in his case, which they were willing to extend to the penitent Talbot; this, we say, may be true. But with that we have no concern. Jones took these chances when he made his fight. With us the only question as to the punishment is, did it exceed the limits prescribed by law? Being compelled to answer in the negative, we cannot say the punishment was unjust, inequitable or excessive, no matter what the motives which induced its infliction.
But we are urged to reverse the case upon other grounds. One is that proof was permitted to be made, over objection, that other horses and property were stolen at or about the same time, and in the same neighborhood from which Cameron’s horse, the one in question, was stolen; and further, to prove that these •other horses and property were found in possession of the parties when they were arrested for the theft of Cameron’s horse. As necessary, or, rather, when necessary, to establish identity, in developing the res gestae, or in making out the guilt of the accused by circumstances connected with the alleged theft, or to explain the intent with which the accused may have acted, *95such evidnece is always admitted. (Gilbraith v. The State, 41 Texas, 567; Davidson v. The State, 12 Texas Ct. App., 215.) Moreover, this evidence was carefully guarded and properly limited by the court in the tenth paragraph of the charge, wherein the jury were told: " The defendant is on trial for the theft of Cameron’s horse, ana they will give no attention to the testimony about the Hamby mare and Moore’s saddle as evidence to show the theft of the horse. The testimony can be considered only by the jury for what they may deem it worth as tending to show the intent of the defendant Jones in whatever actions they may find from the evidence were done by him.”
With regard to the other portions of the charge, we have only to say that, when considered in connection with the requested instructions which were given, it fully, sufficiently and explicitly submitted the questions of law necessary to be understood and determined in relation to the facts, and the supposed objections to it are untenable.
The only remaining question, outside the sufficiency of the evidence, is as to the juror Cameron, who was a distant relative to the prosecutor. Suffice it to say, as to this objection, it was the duty as well as the privilege of defendant to thoroughly test the qualifications of the jurors before accepting them, and, if he failed to do so, the fault is his own; and if he did so, and then took the juror, the fault is also his own. At all events, this objection to the juror might, could and should have been ascertained before he was placed upon the panel, and if by accepting him defendant committed an oversight or failed to use diligence, in either case he has not shown that he was in any way specially injured thereby. But such an objection comes too late after trial.
As to the sufficiency of the evidence in establishing defendant’s guilty complicity in the crime, whilst it is wholly circumstantial, it is, in our opinion, none the less conclusive. In our opinion, no other reasonable hypothesis than that of his guilt could well have been the result of the evidence as shown by this record.
We have given the case a full and careful consideration, and finding no cause for the reversal of the judgment, it is affirmed'.
Affirmed.
Opinion delivered April 25, 1883.