This case was affirmed at a former date of this term in an opinion by Prendergast, Judge.
Appellant presents a vigorous motion for rehearing which has received our careful consideration.
The case is one of misdemeanor theft, the property taken being certain seed cotton, in quantity about 200 pounds; it was undisputed that the cotton was taken without the knowledge and consent of the owner, from his premises during his temporary absence. Appellant was picking cotton, along with a number of other hands, and was paid by the owner one dollar for his services in weighing the cotton of the other hands and in paying them, on the day of the owner's absence. On the afternoon of the alleged theft appellant was going away from the owner's premises in a wagon in which was the alleged stolen cotton. When asked if he had any such cotton he denied it, according to two witnesses, the wife of the owner of the cotton and another person.
His principal defense on the trial was that even though he took the cotton, he intended to pay for it and thought it would be all right with the owner.
Appellant makes several contentions in his motion for rehearing, which we will briefly notice. First, that his defense was misunderstood by this court on the former hearing; he claimed that if guilty of any offense it was embezzlement and not theft. We do not agree with him in this contention under the record, for no witness testified that appellant had the care, management or control of the cotton when taken. The owner was absent only for the day and appellant was acting for him merely in weighing the cotton and in paying the hands. If he took the cotton fraudulently it was theft and not embezzlement. Second, appellant contends, as set out in his bill of exceptions No. 5, the trial court gave an erroneous charge on appellant's explanation of his possession of recently stolen property, and that this court erred in holding that such charge was given at request of appellant. It seems to us that a mistake was made in the former opinion in stating that the charge was given at the request of appellant, and same is modified to that extent, but the giving of the charge by the trial court was not *Page 417 error. It appears from the record that before the alleged stolen property was found in the wagon being driven away from the premises of the owner, that appellant was asked about the cotton and denied having it, and when it was found in said wagon rolled up in some bed clothes; — it appears from his bill of exceptions No. 5, and the sixth ground of his motion for new trial; — that he then said that he bought the cotton from a negro, but later stated that he took it from the owner's premises thinking it would be all right with Mr. Wallace and intended to pay him for it. These facts justified the charge on explanation of possession of recently stolen property. Third, appellant contends in his motion that the trial court should have given his special charge No. 1 directing a verdict for him upon the main ground that the property was not taken from the possession of Buck Wallace, the owner. We can not agree with appellant in this contention. Wallace was away from home for the day at the Dallas fair and says positively that he did not leave his cotton in charge of appellant. The temporary absence of the owner does not change the ownership and control in theft prosecutions. Fourth, appellant strongly complains that his bills of exception have been "explained away," that they and the statement of facts were not filed till the last day permissible and that thereby he has been injured. The trial was had on April 2nd and the court adjourned on April 27th, and on May 17th the statement of facts and bill of exceptions were filed. No reason is shown why appellant could not have had the time extended if the statement of facts and bills as approved by the court were not satisfactory to him, and no reason is shown why the same matters were not pressed upon the court for action sooner. Of course, every man tried in the courts is entitled to have his case come before the upper court upon the exact record as made upon the trial, and it is unthinkable that a judge or other person would wilfully attempt to take away this unquestioned right of every defendant. And the matter is so serious that charges of conduct of this kind ought to be made only in plain cases.
All errors complained of in the bill of exceptions so "explained" by the court were as to statements made by the county attorney in his argument to the jury. The court gave the written instructions asked by appellant, telling the jury not to consider one of said statements. The court refused to give the requested charge for the jury to disregard the other statement, and when the bill of exceptions was presented which was taken to his action he qualifies same by saying, in substance, that the county attorney's statement was in response to the argument of appellant's attorney along the same line. In this we can see no error We are inclined to think the able counsel for appellant, actuated by commendable zeal for his client's welfare, overestimates the effect upon the jury of the statements of the county attorney complained of.
The real merit of appellant's defense lay in his claim that he took the cotton without fraudulent intent, and expecting to pay for it, and *Page 418 believing it would be all right with the owner. This defense was fully presented to the jury in two separate ways by the trial judge and the jury found against appellant thereon.
Believing there was no material error in the original opinion, the motion is overruled.
Overruled.