Appellant was prosecuted and convicted of theft of one head of cattle, and his punishment assessed at two years confinement in the penitentiary.
Oscar Benson and Will King testified that on different occasions they passed through a pasture controlled jointly by appellant and Will Duncan. Duncan was engaged in farming and buying cattle for appellant. That on one occasion they saw two head of cattle — calves — they recognized by the flesh marks, etc., as belonging to the Matador ranch. That the first time they saw these calves in the Law-Duncan pasture they were branded N on left hip. The brand was then only a day or two old. This is shown by the record to be Law's brand; in fact he so states. They saw these calves in this pasture again, and later informed the owners. They informed Mr. Robinson, and they, Mr. Robinson and some others, got these two calves and drove them to the Matador pasture at Winkler. Neither Mr. Law nor Mr. Duncan were present when the two head of cattle were taken by Robinson and others. Mr. Law was then arrested, charged with theft of one head of cattle from the manager of the Matador ranch. Mr. Robinson says that shortly thereafter he had a conversation with Mr. Law, and appellant told him he wanted to go out (to Winkler) and look at it and see if he could tell who he got it from.
Appellant requested the court to charge the jury: "You are charged that to warrant an inference or presumption of guilt from the circumstance alone of possession, must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant, and unless these occur, you will not consider as a circumstance of guilt against him the fact of his possession of the property if he so had." Special charge No. 3 is, in substance, the same as the above. Appellant bases his main contention for reversal on the refusal to give the above two charges, or either of them, and claims the case of Moreno v. State, 24 Texas Crim. App., 401, supports his contention. In this we think he is in error. In the Moreno case the State did rely upon the circumstance of possession alone. In this case the State does not rely upon that circumstance alone, but shows that the *Page 7 animal is recently branded in appellant's brand, and the first time he seeks to make an explanation of his possession, he does not deny possession, does not deny that he claimed the animal, but says he wants to go and see it, and see if he could tell fromwhom he got it, thus admitting his possession, his claim of ownership, only claiming that he had purchased it from some one. So the authorities cited by appellant where the State relied upon recent possession alone, unexplained, to show guilt, are not in point. If recent possession was the only circumstance in the case to show appellant's guilt, then the cases cited would support appellant's contention. But there being other cogent circumstances in the case, the court did not err in refusing the two charges.
The court charged the jury the law of circumstantial evidence in language frequently approved by this court, and in a way not complained of by appellant. Appellant introduced evidence that he had purchased cattle about this time from Cannon, Ballard and others. Cannon and Ballard described the cattle they had sold appellant, and the court instructed the jury: "If you find and believe from the evidence that the defendant, J.L. Law, purchased the one head of cattle described in the indictment, and for which he is now being tried, from C.I. Cannon, John Ballard, Will Duncan or any other person, or if you have a reasonable doubt as to whether he did so purchase said one head of cattle, you will find the defendant not guilty." This presented the affirmative matter offered by defendant in as favorable light as the law required.
There are no bills of exception in the record in regard to the introduction of testimony, consequently those grounds in the motion for new trial complaining of the admissibility of certain testimony can not be considered by us. Neither can we review the action of the court in refusing to give several special charges requested alleging certain remarks to have been made by State's counsel. No bills are in the record verifying the fact that such language was used as requested, charge alone does not verify that fact.
The testimony of King and Benson show that they saw two head of cattle belonging to the Matador ranch in appellant's pasture, and in his brand, both of which were taken out and returned to the Matador people. The indictment in this case charged the theft of only one head of cattle, and the State prosecuted appellant for the theft of one red calf, bald face, white running back to its weathers, and on its back; all four feet white; about half or two-thirds of its tail being white, and referred to in the record as the white-tailed calf. As there was evidence that a motley-faced calf was also seen in appellant's possession at this time, the court at the request of appellant gave the following charge: "You are instructed that you will not convict defendant for the theft of any other animal except the one the State elected to rely on, the one described as the white-tailed calf, and not for that one unless you believe from the evidence beyond a reasonable doubt that he stole this one." Having *Page 8 given this charge at the request of appellant, the criticism of the court's charge in this respect is without merit under the evidence in this case.
Cannon and Ballard testified in behalf of defendant. On cross-examination it was shown they were both under indictment charged with felonies. As this evidence could have been used by the jury for no other purpose than as affecting their credit as witnesses, there was no error in failing to so instruct the jury.
The evidence fully supports the verdict and the judgment is affirmed.
Affirmed.
ON REHEARING. February 4, 1914.