Appellant was convicted of the theft of three mules, and his punishment assessed at two years confinement in the State penitentiary.
S.A. Hartgrove testified to the loss of three mules, and that upon *Page 179 information received he went to Pawhuska, Oklahoma, and round all three of the mules in the stock pens. Mack Kyle testifies that the mules came to Pawhuska in a carload of stock shipped there by appellant. Appellant admits that fact, and also admits that when Mr. Hartgrove identified the three mules as his property he, appellant, paid Hartgrove for the mules, at that time making no explanation of how he came into possession of the mules.
However, upon his return home, the length of time not being shown, C.C. Bryson testifies that appellant told him he had purchased the mules and could show a check when the proper time came to produce it. W.E. Farmer also testifies that after appellant's return home, appellant told him that he had gotten in trouble about a portion of the shipment of stock he had made; that Mr. Hartgrove claimed three of the mules, and he had paid Hartgrove for them. He also stated to Mr. Farmer that he had gotten the mules from a Mexican.
On the trial of the case appellant testified that he was buying and selling stock, and that Mr. Kirkpatrick had telephoned him about a Mexican on his, Kirkpatrick's place, who had three mules for sale. That he went over and he, appellant, and W.E. Brown went down to where the Mexicans were, and he purchased the mules from the Mexican. He did not know his name, nor where he now is; that he paid him the money, getting it from Fred Taylor. He says Taylor was in attendance on court, but neither he nor the State called Taylor as a witness. Appellant denied telling Bryson that he had paid for the mules by giving a check, and that he could produce the check when the time came to produce it. Kirkpatrick testified in behalf of appellant, and said that a Mexican on his place had tried to sell him three mules, but he did not buy, and telephoned appellant about the Mexican having the mules; that appellant came over, and appellant and Brown went down to where the Mexican was at work, and when appellant and Brown returned, appellant told him he had purchased the mules. Appellant asked him to let the mules stay in his pasture for a few days, and he refused to give permission. On cross-examination he said one of the mules was a yearling, another two-year-old, while the third was a three-year-old. That he knew of appellant buying no other mules from a Mexican other than those three.
Mr. Hartgrove testified that the mules he lost and which he found in appellant's possession in Oklahoma, and which appellant paid him for, were all two-year-old mules.
When appellant returned from Oklahoma he had a conversation with Kirkpatrick, and desired to prove by Kirkpatrick what he, appellant, said to Kirkpatrick. This would be inadmissible, for it was not coincident with the time he claimed to have purchased the mules, nor with the time when he first knew he was charged with having stolen the mules. The court, in approving the bill, states: "Approved with this explanation, towit: Defendant was first seen with the mules in Oklahoma and his right challenged and he paid Hartgrove for them. The conversation offered in evidence was long after this. Kirkpatrick testified *Page 180 to having told defendant of these mules and that defendant informed him at the time of the alleged purchase that he had bought them and the defendant also testified fully to his purchase of the mules. The statement of defendant offered in evidence it occurred to me was self-serving, and an attempt to bolster his evidence by self-serving declaration."
Appellant contends that the court erred in not permitting him to prove by the witness Kirkpatrick that at a former trial of the case the case was submitted to the jury alone upon the evidence of the State, and upon the testimony of the State's witnesses, Hartgrove and Bryson, and that Farmer and Kyle were not present and did not testify. This was amply shown by other testimony. On the cross-examination of Kyle appellant asked if he did not know he could not be compelled to come to Texas to testify; that he had received $20 to pay his expenses, and he expected to receive $2 per day for his time and all his expenses. That he had never testified before. Appellant was permitted to prove that Brown was in attendance on the last term of court, and that he had recently lost his wife and one of his children, and it was, therefore, impossible for him to attend court. The witness Kirkpatrick could not possibly know why appellant and his attorneys had not placed Brown on the witness stand when he was in attendance on court. They alone would know why they did not do so, and if they offered to testify why they did not do so, we are sure the court would not have sustained an objection to them so testifying. And as no such explanation was forthcoming, it was not improper for the State's counsel to comment on the fact, that while appellant testified that Brown was present when he purchased the mules from the Mexican, he had not been called as a witness. As appellant had proved the condition of Brown's family as a reason why he was not in attendance, and the further fact that he was present at the former term and had not been called to testify, the remarks of State's counsel were within the record. As far as this record discloses no one knows what Brown would have testified had he been present, and if he had testified as did Kirkpatrick, that appellant did purchase three mules from a Mexican, but also testified that they were one, two and three years old, it would not have materially aided appellant. Appellant contends there is no testimony showing the falsity of his statement that the mules lost by Hartgrove and found in his possession in Oklahoma were not the mules he claimed to have purchased from the Mexican. The mules Hartgrove lost were two years old, while under this record the mules he says he purchased from the Mexican was a yearling, a two and a three-year-old. This would have a very strong tendency to lead a jury to believe that the mules he claimed to have purchased from the Mexican were not the Hartgrove mules.
Appellant also contends that the court erred in failing to give his special charges on explanation of possession of recently stolen property. Appellant gave no explanation when first charged with the offense in Oklahoma, nor when he paid Hartgrove for the mules. It is after his return to Texas he first makes a statement or claim that he had purchased *Page 181 the mules from a Mexican. The court in his charge instructed the jury: "If you find from the testimony that the defendant bought the mules he is charged with stealing, or if you have a reasonable doubt as to his having bought said mules, you will acquit him." This character of charge was approved in Mathews v. State, 32 Tex.Crim. Rep., and it was held not to be error to give any other charge on defendant's explanation. In this case, as in that case, the defendant's explanation was a purchase, and he gave no other explanation. See also Wheeler v. State, 34 Tex.Crim. Rep.; Holmes v. State, 42 S.W. Rep., 979; Sisk v. State, 42 S.W. Rep., 985; Ford v. State, 51 S.W. Rep., 935, and cases cited. In the case of Hays v. State,36 Tex. Crim. 533, this court said: "When the defendant was arrested he was found in possession of the stolen property. The second bill of exception is an insistence, on the part of appellant, that the court committed an error in not charging on recent possession, in connection with the explanation of defendant. While the court did not give in terms, a charge on possession and explanation, he did that which was better, authorized the jury to acquit the defendant, if they believed the defendant bought the pistol, or they had a reasonable doubt concerning the matter." Such a charge as that given by the court, instead of the more lengthy one on possession and explanation, was held to be preferable in the case against Douglas Whitfield, decided at the present term of this court.
We have carefully examined each question in the motion for a new trial, and none of them present any error which would call for a reversal of the case.
The judgment is affirmed.
Affirmed.