Appellant was convicted of theft and his punishment assessed at one day imprisonment in the county jail and a fine of $10.
In his first bill of exceptions appellant contends that the court erred in overruling his application for a continuance. The application shows that he obtained process for Frank Perry, the sheriff's return showing that no such person could be found in the county. He now says it was issued by mistake for Frank Perry, and that Fred Perry is the person whose attendance he desired. As qualified by the court the bill presents no error. In addition to this, all he says he can prove by the witness Fred Perry is that he at some time (not stated) had seen the turkeys of Mr. Rader, and that when he saw them they were painted with a certain color of paint. Mr. Rader himself testifies he painted *Page 412 his turkeys in the late summer or fall, the information alleging they were stolen on the 27th day of November, 1914. It may be that Fred Perry did see the turkeys in the late summer or fall and they were then painted. This evidence would in nowise contravene the State's testimony.
The remarks of the county attorney complained of present no error. It was but a criticism of the evidence offered in behalf of the defendant.
The case did not call for a charge on circumstantial evidence, and the court did not err in so holding. Mr. Gholson swore positively that he purchased the nineteen head of turkeys in question from appellant, and that they were delivered to him by appellant. Mr. Rader, while swearing that he believed all the turkeys he found in Gholson's possession were the turkeys he had lost, swore positively to two of them — they having been marked by having one of their toes cut off. Milo Hood also positively identifies one of the turkeys as the turkey he had sold Mr. Rader. In addition to this it is shown that the turkeys lost by Mr. Rader and the turkeys sold by appellant to Mr. Gholson consisted of the same number of hens; the same number of gobblers, and the same number of small turkeys. As two of the turkeys were positively identified, it was not a case depending wholly on circumstantial evidence. As no written charge was presented by the appellant on the other issue he now complains of, this being a misdemeanor, the matter is not presented in a way we would be authorized to reverse because thereof, if the charge of the court did not sufficiently present that issue.
It is made to appear by another bill that in presenting the case the county attorney referred to appellant as "Turkey Tom" and then as a "Gobbler." When the court's attention was called to the fact that these names were being applied to appellant, he told the jury it was improper for the county attorney to so refer to appellant, and not to consider it, and then instructed the county attorney to refer to him by his true name only.
As the defendant stated at the time he had no objection to the whole of the conversation being elicited, and especially as he elicited a part of it, there was no error in permitting Mr. Gholson to detail the conversation he did. After appellant had elicited a part of it, it took it all for the jury to properly understand the matter and be able to pass on the weight to be given that part elicited by appellant.
The evidence for the State, if believed by the jury, authorized a conviction, and the judgment is affirmed.
Affirmed.
ON REHEARING. May 5, 1915.