By indictment filed in the District Court of Montgomery County on the 21st day of January, 1908, appellant was charged with theft of one head of cattle, the property of one G.W. Evans. At a trial had in said county on the 13th day of January, 1910, he was by the jury found guilty as charged, and his punishment assessed at confinement in the penitentiary for two years.
The testimony fairly well identifies the animal in question as the property of Evans. Joe Brandon testifies that he bought the animal from appellant, who found same in a field or pasture, and put a *Page 560 rope on it and delivered it to him. It seems that appellant claimed only half interest in the property, for which Brandon gave him $3.50. The defendant introduced in evidence an indictment against Brandon for the theft of the same property, and proved a good reputation for honesty and fair dealing by a number of witnesses. Further than this, there was no proof offered in his behalf. There were a number of other matters put in evidence by the State, but the above general statement will be sufficient to illustrate the matters discussed.
1. We find in the record a bill of exception calling in question the action of the court in admitting certain testimony of the witness Brandon. It appears that he was asked if he had not seen Joe Pierson on or about Thursday evening before he killed this yearling, and if he did not tell Pierson about finding his beef, and there was some considerable conversation touching the yearling, and, among other things, to the effect that Pierson said to him that he thought he could buy appellant's interest in it because he had no time to handle it, and that he believed it could be bought for $3.50. This was objected to for the reason that it was not shown that appellant was present at said conversation, and that he was not bound thereby, and for the further reason there was nothing in the cross-examination to authorize the introduction of any statement that Pierson made to the witness at that time. There is no statement as a fact or finding by the court that appellant was not present when this conversation was had. It also shows that part of this conversation between the witness Brandon and Pierson was brought out by counsel for appellant. This being true, the remainder of the conversation was admissible, and the State was authorized to put into the case the whole of the conversation, a part of which had been introduced by appellant. Again, as stated, the mere statement, as a ground of objection, that appellant was absent, is not equivalent to a finding of fact that in truth he was not present. As presented, the bill is without merit.
2. The court's charge on the subject of accomplice is criticised and claimed to be not in compliance with the law. This charge is as follows: "You are further instructed that a conviction can not be had upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense.
"An accomplice, as the word is here used, means anyone connected with the crimes charged, either as principal, accomplice or accessory. It includes all persons who are connected with the crime by unlawful act or omission on their part, transpiring either before, at the time of, or after the commission of the offense, and whether or not they were present and participated in the commission of the crime. Now, if you are satisfied from the evidence that the witness Joe Brandon *Page 561 was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are instructed that you can not find the defendant guilty upon Joe Brandon's testimony unless you first believe that the testimony of said Joe Brandon is true, and that it connects the defendant with the offense charged, and unless you further believe that there is other evidence in the case, outside of the testimony of Joe Brandon, corroborating and tending to connect the defendant with the commission of the offense charged."
This charge is in substantial accord with the form approved by this court in the case of Campbell v. State, 57 Tex. Crim. 301, 123 S.W. Rep., 583, except that the jury were not instructed that as a matter of law Brandon was an accomplice. We think it very doubtful indeed whether he was an accomplice, and the evidence sustaining this issue was slight and fragmentary.
3. There are some other complaints of the charge of the court, but they are of the most general character and do not point out the particular error which is the subject of complaint. Under the authority of Duncan v. State, 55 Tex.Crim. Rep., and Holmes v. State, 55 Tex.Crim. Rep., if in fact the charge was erroneous, we could not, in view of these general complaints, review same. We may say, however, we have examined the charge of the court, and think that it is an accurate presentation of the law.
4. Again, complaint is made that the court erred in not charging the law of circumstantial evidence. It would have been, we think, manifestly improper for the court to have given this charge. The testimony was not wholly circumstantial. Brandon's testimony directly raised the issue of appellant's guilt in that it showed the disposition of the property, and that appellant had himself come into actual possession of same and delivered actual possession thereof to him. It is never proper for a court to charge on circumstantial evidence except in cases where the testimony is wholly circumstantial.
5. Again, complaint is made that the court erred in refusing to give a special charge asked by appellant to the effect, in substance, that if the jury should believe from the evidence that Brandon was an accomplice, that they should acquit appellant. This charge should not have been given, because there is some evidence, and we think sufficient evidence of corroboration in the record to sustain the conviction even if it should have been found, as a matter of fact, or the court should have instructed the jury as a matter of law, that Brandon was an accomplice. So far as we can tell from the record, appellant seems to have been fairly tried, and none of the questions raised by his able counsel are of such moment as either to require or to justify us in reversing the judgment.
The judgment is therefore in all things affirmed.
Affirmed. *Page 562