On November 17, 1909, in an opinion by Judge Ramsey, the judgment of conviction in this case was affirmed. In his motion for rehearing, filed December 2, 1909, appellant insists, first, that the evidence was insufficient to sustain the conviction. The testimony shows that B.C. Hebert, Lewy Hebert, _____ Bragg, George Lewis, Ed Williams, and Bud Bowie, on the evening of November 25, 1908, were rounding up cattle twelve or fifteen miles from Beaumont. That between three and four o'clock George Lewis, while driving in an animal, discovered appellant skinning a blue cow in a skirt of timber four or five hundred yards from where the other parties were. The cow had been recently killed by a *Page 648 rifle ball in the forehead. That as the parties were returning from the place where the blue cow was found, they discovered another cow about one hundred yards from the blue cow recently skinned, also shot in the head with a rifle. Some of the parties went back to the scene on November 26, about three or four o'clock p.m., and found that the blue cow had been skinned. B.C. Hebert took from the faces of each cow a piece of hide. They saw shoe tracks, and tracks that looked like they had been made by a round stick, and horse and wagon tracks. When the pieces of skin were applied to the hides they fitted in exactly. On November 26 appellant was seen going out in the direction of where the cows were found. Charles Cabiness testifies that after being informed of the killing of the cows he watched appellant's house. That appellant came in after 11 o'clock p.m., November 26, in a wagon, to which he worked two horses; that after appellant had gone into his house witness found two skinning knives and a whet rock in the wagon. That the next morning he saw appellant go out in the direction of the place where the cows were found, and saw him come in that evening about 7 o'clock. That the next morning, the 28th, appellant brought the hides to Finnigan Co., hide dealers, in a sack under a coat in the wagon. Both hides had fresh blood on them. George Lewis says when he saw appellant on the evening of the 25th; he had his gun pointing at him, and that his wagon and horses were there. That witness was whooping and holloing and popping his whip, driving cattle through the woods when he came upon appellant. Appellant has only one leg, that is, he has a peg leg. Bud Bowie says he saw appellant driving away from the place as fast as he could that evening, the 25th.
We think the evidence sufficient to show that appellant took the cow. There is raised no question as to the ownership or nonconsent of owner.
2. The second ground of the motion is that the trial court should have limited the testimony regarding the other cow, and have required an election, since there was an indictment pending for the theft of the other cow from the same owner, and neither indictment distinguished the one cow from the other; that hence appellant did not know which charge of theft he had to meet, and in this connection appellant raises the point whether a verbal instruction limiting the evidence was allowable, insisting that all charges in felony cases must be in writing. It is not claimed that a written request for instruction on this point was submitted. We think trial courts should, where the necessity arises, give written instructions regarding the limiting of the purpose for which evidence may be considered, but we do not think under the facts of this case, since appellant did not make a request for the charge, that there was such error as he can complain of. This being a case of circumstantial evidence, the State was properly permitted to prove all the facts regarding both *Page 649 and each of the cows. They were doubtless killed by similar balls from the same gun, and all the testimony connecting appellant with the taking off of these bovines, and the taking off of their hides, shows that he in one act — one transaction — appropriated the two cows belonging to one owner. There is no single circumstance relative to the other cow that suggests another time or place of taking than the very time and place of taking the blue cow. In a word appellant committed but one theft in taking both, and the State, after securing a conviction for taking one, could not ask for a conviction for taking the other.
3. Appellant urges with much ingenuity and force that the remarks attributed to juror Bryant in the ex parte affidavit of W.A. Johnson proved that said juror took as a "circumstance against him appellant's failure to testify." Counsel limits this contention by the elimination of any claim that any juror discussed appellant's failure to testify. He says he complains that immediately after the verdict the juror stated "that if appellant had testified, even if he had admitted he killed the cow because he was hungry and did it to get something to eat for himself, wife and children, that he would not have convicted him." We are satisfied with the treatment of this matter in the original opinion. At most the waiver of proof by the county attorney leaves the allegation in the affidavit undisputed and proved, but this court is not put in possession of any of the circumstances of the juror's statement. Many men are prone to agree with the present audience, indisposed to combat opposing views, and sometimes apologize for their conduct when sure they are right if confronted with those who did not approve. It devolved upon appellant to develop, if he could, all the circumstances favorable to his motion, and we take it that he did so.
4. As to the fourth ground of the motion: The time of the offense charged is November 25, 1908, and trial was held April 1, 1909. Appellant was arrested shortly after November 25, to wit: November 28th. He must have known that the State would seek to connect him with the taking of the cattle from which the hides found in his possession on November 28 had been taken. The relation of the hides to the cows is demonstrated by infallible proof. It is not positively shown, but from the evidence it is a fair inference that appellant knew of the fitting of the pieces taken from the faces of the cows to the hides he had in his possession. He was thus put upon notice that he must meet the proof the State would offer. We do not understand that a new trial should be granted for newly discovered evidence unless the party offering it is shown to be without fault in failing to discover it before the trial, and the proposed evidence might probably produce a result contrary to the one reached without it. We are not prepared to say that the evidence proposed was so irreconcilable with the State's testimony as that the jury might have acquitted appellant had the newly discovered evidence *Page 650 been before them. However, we feel safe in holding that appellant was without excuse in his failure to discover the testimony before the trial, and whatever may be true as to the state of the weather on November 25th to 28th, and the time the hides would remain fresh, or in which it would begin to smell, there can be no doubt of the fact that the hides found in appellant's possession were taken from the cows.
Since, in our opinion, appellant has had a fair trial and no error to his prejudice was committed, his motion for rehearing is overruled.
Overruled.
McCord, Judge, not sitting.