[1] The conviction was for the theft of one hog. The appellant sold three hogs to the witness McMahan, and they were turned into a pasture in which there were about 75 other hogs. The owner named in the indictment, Jones, came to the premises of McMahan claiming that his hogs had been stolen, and was directed by the wife of McMahan to go into the pasture and see if he could find his hogs. Jones returned, identifying as his the three hogs which had been purchased from appellant. These hogs were in Jones’ mark, and appellant claimed to have used the same mark. After identifying the hogs, Jones brought other parties whose statements touching the identity of the property convinced McMahan that they belonged to Jones, and they were delivered to him. The appellant claimed that the hogs belonged to him; that he had had them in a pen for some months. One of them had a sore place upon it, which he claimed had been torn by a dog when the hogs were put in the pen. Other testimony was given to the effect that the torn place was fresh at the time the hogs were delivered to McMa-han. There was evidence that the appellant had offered to pay McMahan $100 to have the prosecution abandoned, and there were other circumstances tending to contradict appellant in his. claim of ownership. Without detailing all of the evidence, we express the opinion that it is sufficient to support the verdict of the jury.
[2] Two bills of exceptions appear, one complaining of the refusal of the court to permit the witness McMahan to answer the following question:
“Is it not a fact that in May, 1918, when the state’s witness, Billie Jones, who claimed the alleged stolen hogs, inquired of you if you knew the whereabout of said hogs, that he, Billie Jones, was not then able to give any description of the hogs other than their earmarks, which was under slope in each ear?”
It is stated in the bill that the witness would not have testified that at said time Billie Jones was unable to give any description of the hogs other than their marks. It is manifest that the bill discloses no harmful error.
[3, 4] The other bill complains of the refusal of the court to permit the witness McMahan to answer a question framed to show that he failed to deliver the hogs at once to Jones because of the uncertain and contradictory description given of them by Jones in various conversations with the witness. The bill does not disclose the objection that was made by the state and sustained by the court, nor does it point out the materiality and relevancy of the inquiry, and in this respect is defective. Luttrell v. State, 14 Tex. App. 152; Counts v. State, 19 Tex. App. 452; Goforth v. State, 22 Tex. App. 408, 3 S. W. 332. The inference may be dfawn that the purpose of the inquiry was to indicate to the jury that Jones had made statements touching the identity of the hogs contradictory to that given by him upon the trial. It is possible that the trial judge regarded the inquiry not adapted to that purpose in that it is not asked what statements Jones made, but rather asks for the conclusion of the witness relating to whether the statements he did make were contradictory or otherwise. We have examined the statement of facts touching this matter, and it appears that the witness McMahan said that he had but one conversation with Jones about the hogs, and that in that conversation Jones did not describe1 them; that he did delay delivering them to him until they were identified by Mr. Kennedy as belonging to Jones. He said further that the delay was not because of any contradiction in Jones’ description. The state of the record was not such as to disclose that there was error committed by the learned trial judge in the matter complained of.
The judgment is affirmed.
ÉnmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes