Jones v. State

White, P. J.

That a party charged by indictment in the ordinary form under our statute for theft (Pasc. Dig., art. 2381; Rev. Penal Code, art. 724) maybe found guilty and punished upon proof made that he obtained the property by any false pretext, with intent to deprive the owner of the value thereof and appropriate it to his own Use and benefit, as provided in another article of the Code (Pasc. Dig., art. 2385; Rev. Penal Code, art. 727), is no longer an open question in this State. Maddox v. The State, 41 Texas, 205. The taking defined in the two articles is the same, i.e., theft; and the difference between the two consists in this : that in cases of ordinary theft, or rather where the indictment is for ordinary theft, the facts and circumstances with regard to the false pretext, being matters of proof, need not be averred in the indictment (White v. The State, 11 Texas, 769; Smith v. The State, 35 Texas, 738); whilst in an indictment for obtaining property under false pretenses the false pretext must not only be set out, and its truth negatived by direct averment, but the proof to sustain the charge must also strictly correspond with the allegations in every essential particular. Warrington v. The State, 1 Texas Ct. App. 168. And an indictment for obtaining property under a false pretext should further aver that the property was delivered with consent of the owner, and the intent with which the property was obtained. Marshall v. The State, 31 Texas, 471.

The indictment we are considering was an ordinary one for theft of a gelding. Over objections of defendant, the court admitted evidence that the possession was obtained by consent of the owner but under a false pretext. This ruling of the court was correct.

Prior to calling this case for trial, a capital case which had been set for that day had progressed so far into a trial as that the parties had not only announced ready for trial, but had selected two jurors, when, the special venire being exhausted, the court ordered another returnable on the third day "théreafter, and adjourned the murder case over until that time. The case under consideration here was then called for trial, when defendant objected that there was a case already pending before the court, and that until it was disposed of no other case could be heard and determined. This objection was overruled, and a bill of exceptions duly saved.

Our statute provides that “ a capital case may, by agreement of the parties, be set for trial or disposition for any particular day of the term, with the permission of the court, or the court may at its discretion set a day for the trial or disposition of the same; and the day agreed upon by the parties, or fixed by the court, may be changed, and some other day be fixed, should the court at any time deem it advisable.” Code Cr. Proc., art. 609. Whether, after a trial has been actually commenced under the circumstances here presented, and a postponement to a future day becomes necessary, the court may take up and dispose of other business during the interval, is, we are of opinion, a matter entirely discretionary with the court, and one which will not be revised unless it is shown that the party complaining has been injured thereby. No injury is shown in this case. We see no reason why the court could not, with the same propriety, when an unavoidable delay of days occurs, take up and dispose of any other business, just the same as it is authorized to take up and dispose of other business during the retirement of a jury in ordinary cases. Code Cr. Proc., art. 704. The order and direction of the business of the court is under the control and in the discretion of the court, except where the rules of procedure and practice are prescribed by statute.

Causes of challenge to the particular juror in capital cases are those enumerated in art. 636, Code of Criminal Procedure, which are made, with one exception, applicable to all criminal actions. Code Cr. Proc., art. 650. The question proposed to be asked the jurors, “ Whether they or either of them had any bias or prejudice in favor of or against the injured parties?” is not authorized by any of the grounds of challenge mentioned. A juror may be tested and disqualified by his relationship to, but not his bias or prejudice in favor of, the injured party. Art. 636, subd. 10. Subd. 12 makes it a disqualification if he has a bias or prejudice in favor of or against the defendant.

The court did not err in excluding the letters written by defendant to his agent or friend, S. C. Hurt, set out in defendant’s fourth bill of exception. To have admitted them would have been to allow defendant the advantage of evidence which he had made for himself subsequent to the commission of the offence. Harmon v. The State, 3 Texas Ct. App. 51.

In addition to a charge fully presenting the law, the court, in conformity with the theory of the defence, gave in charge, at defendant’s instance and request, a special instruction as follows: “If you believe from the evidence that the defendant hired the animal in question from Prewitt and Anderson, with the honest purpose of going to Brushy to arrest certain parties for whom he had papers, and that defendant did go to Brushy after the parties, and never returned the animal hired, but was prevented from so doing by being himself arrested and the animal turned loose there, and defendant carried off elsewhere, you will acquit-the defendant.”

Evidently the jury did not credit the story of the defendant’s caption and asportation, but rather the caption and asportation of the gelding by him, as charged in the indictment. We cannot say that they erred in their conclusions, for the testimony tends strongly if it does not positively show that he was riding the gelding and offered to sell a similar gelding after his own supposed arrest by the desperadoes, miles distant and in a different direction from the scene of his capture and the place where the gelding was said to have been turned loose.

We see no reason why the judgment should be reversed, and it is therefore affirmed.

Affirmed.