Appellant was convicted for theft from the person of A. J. Florence, of a ten dollar bill, and his punishment was assessed at confinement in the penitentiary for five years.
We find in the transcript the following matter: “And the grand jurors aforesaid at the same time asked that the court ■appoint a finance committee to examine into and report the condition of the finances of Smith county, and, having no further business now before the court, retire to consider of their further duties.” What has the financial condition of Smith county to do with this case? Or in passing upon this appeal, what bearing -upon, or relation to, this case has the request of the grand jury for a finance committee? It is the practice of this court, in ■criminal cases, to read the entire record; and records prepared under the rules are necessarily voluminous, requiring- of us a vast amount of time and labor to read them. We would therefore beg of clerks not to insert in the transcript matter foreign to the case, or matter which is immaterial or unnecessary to a proper disposition of the case.
Counsel for appellant insist that the judgment should be reversed, first, because the law applicable to the case of voluntary return of stolen property was not given in charge to the jury. Appellant snatched the pocket book of Florence, which contained about three hundred dollars, and started for the door.
■ Florence called to him to stop with his money. Defendant said •he would tie it for him, continuing toward the door, where defendant was met by Lipshits, who told him to give. Florence his money. Defendant gave back the pocket book.
*612If the evidence closed here—if this was the case—the question of voluntary return of the property might possibly be presented-We are inclined to the opinion that, under these facts, this question would not arise, but, be this as it may, the other facts! clearly show that there was no return, voluntary or otherwise*, of the ten dollar bill; for when,.with his back to Florence, he*) the defendant, dextrously extracted the bill, this ten dollar bilí was never returned by defendant. And for the theft of this bill* not the pocket book and its contents, defendant was convicted.
2. Counsel for appellant contend that this is a case of circumstantial evidence, and that, therefore, the law applicable to such a case should have been charged to the jury. While it is true that defendant was not seen to take from the pocket book the ten dollar bill, he nevertheless was seen to take the pocket book which contained the bill. Was this not positive evidence of the taking of the bill? We think so.
3. It is urged by counsel -for appellant that a new trial should have been given defendant upon the ground of newly discovered evidence.
In support of the testimony of the prosecuting witness Florence, the State proved that, prior to the supposed theft, defendant was almost entirely destitute of money, but that after the theft, on the same day, he was seen with a ten dollar bill, etc. Under the facts of this case, this evidence was very pertinent and criminative. To meet this, the defendant claims that he has discovered the proper matter in the affidavit of F. W. Flood. What says Mood upon this subject? That defendant was in his. saloon the day or night before the theft, and exhibited to him money,-consisting of United States currency and silver, over the amount of ten dollars. The denomination of the currency bills, is not stated. How this man Flood should remember that the amount of money exceeded ten dollars, and yet could not give the denomination of the bill, or bills, is somewhat suspicious. But this is of no importance, because of another potent fact* which is that defendant, if indeed he did exhibit this money to Flood, knew it, and when arrested for the theft, and especially upon the trial when this fact was rendered so very important, .would have remembered it. And though he may not have known the name of Flood, certainly as Flood was doing business, within two or three hundred yards of the court house, the slightest diligence, even after announcement, would have resulted in. securing this evidence.
*613Opinion delivered March 21, 1884.These observations apply with equal, if not greater, force to the newly discovered evidence of Lipshits. If Florence was ■drunk, defendant knew it. He also knew that Lipshits was pres-ent at the very time of the taking, and must have known, if it was true, that Florence was drunk. Lipshits’s place of businéss was in Tyler, at which place the trial was had; and in addition to all this, he was in attendance upon court as a witness for the State. If defendant desired to contradict Florence, and prove that in fact he was drunk, ordinary diligence would have .prompted him to place him upon the stand and prove the fact.
We have very carefully examined all of the points raised by the very able brief and argument of counsel representing appellant. We have not discussed them all, but have only noted those points or assignments which, in our opinion, are most .plausible; and, after a very thorough examination of the record, we have found no error therein, and the judgment is affirmed.
Affirmed.