This conviction is for the theft of two horses. The horses were stolen by defendant in New Mexico, and brought by him into Wilbarger county, Texas. Numerous errors are assigned by defendant, but we have not been aided in considering them by a brief or argument in support of them. We will determine them, however, in the light of such investigation and thought as we have been able to give them.
It was not error to refuse the defendant’s motion to put John West upon trial before trying the defendant. ’ Said West was indicted as an accessory to the theft charged against the defendant, and it is expressly provided that where “the principal is arrested he shall be first tried. ” (Penal Code, art. 90.) The defendant being the principal, and under arrest, it was not only proper but obligatory upon the court to try him first. This requirement of the statute is special and controls the general provision relating to the severance on trial of defendants. (Code Crim. Proc., art. 669a.)
It was not error to admit in evidence, against the defendant, the bill of sale found in his possession, or in the possession of the party with him. This bill of sale described the stolen horses, and was manufactured, as the evidence shows, by the defendant. That it was taken from the possession of the defendant while he was under arrest, and without authority of law, did not render it inadmissible evidence against him.
It was not error to permit the State to introduce in evidence the signatures of the defendant to his application for a continuance and applications for attachments. These signatures were proved to be genuine, and were introduced for the purpose of comparing them with the handwriting of the said bill of sale, to show that the defendant wrote said bill of sale. The applications were not read in evidence, and the introduction in evidence of the signatures thereto did not violate the rule which excludes a confession of a defendant made while in jail or other place of confinement.
Several objections are made to the charge of the court, and to the refusal of the court to give instructions requested by the defendant. We will not discuss these objections in detail. We think the charge contains a full, fair and correct exposition of the law applicable to the facts of the case, and embraces substantially, to the extent demanded by the evidence, the instructions requested by the defendant. The instruction given at the instance of the State is, in our opinion, correct, as was inti*472mated by this court in Fernandez v. The State, 25 Texas Ct. App., 538, where the precise question was discussed but not determined.
Opinion delivered April 13, 1889.We have found but one error in the charge of the court. It submitted to the jury the question of the law of Hew Mexico with respect to theft. This question was for the court and nob the jury to determine, and the charge should have instructed the jury that the law of Hew Mexico, as to theft, had been proved, and the purport of that law. This error, however, was favorable to the defendant, and he has not and could not complain of it. We notice it only for the purpose of calling the attention of trial judges to the rule that it is the province of the court to determine when the laws of another State or country have been established in evidence, and to construe such laws. These are matters of law and should not be submitted to the jury.
As to the sufficiency of the evidence to support the conviction, there is no doubt in our minds. It is circumstantial, but of the most cogent character, and the jury could not reasonably, we think, have found the defendant not guilty. The judgment is affirmed.
Affirmed.