1. In the indictment it was alleged that John and Fred Duderstadt were the owners of the cattle, and the proof showed that they had the possession, charge and control of the same. Such being the case, it was unnecessary to prove want of consent of their father, Andrew Duderstadt, the real owner. (Bailey v. The State, 18 Texas Ct. App., 426; Frazier v. The State, 18 Texas Ct. App., 434.)
2. The third bill of exceptions, reserved to the testimony of the witness Trammel, is not well taken. Witness had stated that he had bought certain cattle from defendant; that these same cattle were taken from his pasture by the officers of the law, and driven to Gonzales and put into the court-house yard, and that the Duderstadt boys took some of them away from the court-house yard. If there is any appreciable objection to this testimony we fail to perceive it, and the exception fails to show it.
3. The fourth bill of exceptions was to the court’s allowing the sheriff, Jones, to testify that he had received official notice that one Schneider had been released by other parties from the penitentiary, and was now a refugee from justice. This evidence was admissible in view of the testimony of Mrs. House, defendant’s wife, who stated that Schneider, a short time before a man came to her house looking for stolen cattle, had “ brought some cattle to defendant’s pen, put them into the pen, and branded them.”
4. There was no error in refusing to let defendant’s witness House testify as to self-serving declarations and statements made to witness by defendant, after defendant had parted with the cattle; and the declarations of Reinhardt Schneider about his purchase and claim to the cattle were hearsay and inadmissible. The court did *239not err in the rulings complained of in the fifth bill of exceptions.
5. The remark of the court when the prosecution objected tp defendant’s counsel asking leading questions of defendant’s witness and wife, Mrs. House: “ Let him go on; I have cautioned him several times. I reckon the jury have sense enough to know whether the witness is telling the truth or not,” was not, in our opinion, a reflection upon the veracity of the witness. From the manner in which this matter is stated in the exception, we cannot see how or in what manner defendant under the circumstances shown could be seriously prejudiced.
6. The seventh, eighth and ninth bills of exception are complaints of remarks indulged in by the district attorney, the most objectionable of which perhaps was that “ the State of Texas might be raked over with a fine-tooth comb, and a more notorious character than the defendant John House could nowhere be found.” The objection to this remark, as stated in the bill, is that defendant’s character had not been put in issue. True, his character had not been directly put in issue by himself. Still, the charge against him, and evidence which had been adduced to support it, were in their nature likely to reflect somewhat unfavorably upon his character, even if they did not put its notoriety throughout the State in issue. We construe the remark to be not so much evidence of a desire to make use of foreign matter to the injury and prejudice of defendant as an impassioned expression, highly exaggerated it may be, but springing inadvertently from the heat of debate. If all such remarks were held reversible error, but few convictions would stand the test where the case had been hotly contested by able and zealous counsel in the courts below.
The remarks set out specifically in the ninth bill of exceptions are rather deductions and arguments upon the evidence than mere opinions or independent statements by the district attorney. We cannot say they were entirely unwarranted by the evidence. With regard to this subject it was said in Pierson v. The State, 18 Texas Ct. App., 525, “ in view of the frequency of exceptions of this character, we will take occasion here to say that before we will reverse a conviction because of remarks of prosecuting counsel it must clearly appear to us, 1, that the remarks were improper, and, 2, that they were of a material character and such as, under the circumstances, were calculated injuriously to affect the defendant's rights.”
7. As to the charge of the court we think that, taking the two special requested instructions of defendent which were given in *240connection therewith, it is a full and lucid exposition of the law of the case, and that the criticisms and refinements of counsel have failed to make apparent any radical defect either in substance or phraseology. We have already seen that the non-consent of the real owner, Andrew Duderstadt, was unnecessary to be proven under the facts disclosed. But, had it been necessary, we believe the charge of the court in that particular was the law applicable to the facts. As to accomplice testimony, we cannot well see how the instructions given could have been made stronger or plainer. The jury were told of the necessity for the corroboration of such testimony; that one accomplice could not be corroborated by the testimony of another accomplice; and that “ within the meaning of accomplice as used herein is meant principal and joint offenders and all persons who may have participated in the commission of the offense under investigation, whether as principal offenders or in any other way connected therewith.”
Instructions upon circumstantial evidence were not demanded by the facts, the case not being dependent wholly upon that character of testimony. When defendant was branding the animals and the witness Haldeman called his attention to the fact that they belonged to the Duderstadts, the defendant’s reply, “d—n them, they stole their start,” and that he was “going to get away with them,” was equivalent to a positive admission that he had stolen them, and his declarations to the witness Kennedy aftewards amounted almost to the same thing.
8. But it is said the evidence fails to show that the taking was in Gonzales county or that defendant was ever seen in possession of them in Gonzales county. Defects pointed out in the companion case of House v. The State, 16 Texas Ct. App., 25, and upon which that case was reversed, seem to have been fully met and corrected in this case; and the facts before us do not make the case in any manner analogous to Long’s case (11 Texas Ct. App., 381), or Tyler’s case (13 Texas Ct. App., 205), cited by counsel for appellant. In this case the cattle ranged in Gonzales county, were seen by Fred Duderstadt on the accustomed range in Gonzales county, sucking their mothers, in February, 1883, were branded by defendant at his pen on the 10th day of February, 1883, when he admitted that he knew they belonged to the Duderstadts, and he intended to get away with them, and were afterwards found in Trammel’s pasture, with the changed brand upon them. All the animals purchased by Trammel were driven by the officers taking possession of them from his pasture to Gonzales, and put into the court-house yard, where *241they were identified, claimed and taken away by the Duderstadts as the animals in question. This evidence is amply sufficient to establish the identity of the animals and defendant’s theft of them, though he may not have been seen by eye-witnesses when taking, or afterwards in possession of them in Gonzales county. There is no question but that they were stolen in Gonzales county, and the circumstances and defendant’s admissions show him to be the guilty party.
We have been unable to find any reversible error in this record, and the judgment of conviction is therefore affirmed.
Affirmed.
[Opinion delivered October 31, 1885.]