Three years in the penitentiary was fixed as appellant's punishment on conviction of hog-theft. The testimony shows that the alleged stolen hog was a black sow, with some white hair. After the animal was missed a search warrant was obtained, and the premises of appellant investigated. Meat corresponding to that of the lost animal was found in a barrel or tub in the house on appellant's premises. In the same barrel was found other meat, indicating that a red hog had been killed. The testimony with reference to the meat of the red hog was admitted over appellant's exceptions. The court states, in connection with this bill: "That the testimony as to the weight of the red hog was admitted after defendant had testified as to the killing of that hog, and that it was of the same litter as the black sow he claimed to have killed on Wednesday, for the purpose of showing the improbability of the two hogs being of the same litter, and the probability of the black sow being the hog alleged to have been stolen. There was no evidence tending to show that the red hog had been stolen." With this qualification we see no error in admitting the evidence. Appellant's testimony was to the effect that the red hog referred to was of the same litter as that of the black sow, and that there were other black hogs of the same litter. The sow set up in the indictment, weighed about 125 pounds. The red hog weighed about 250 pounds. All of the other hogs claimed by appellant to be of the same litter were about the same size as the black sow. We believe this testimony was properly admitted, and tended to show, as explained by the court, the improbability of appellant's theory, that they were of the same litter. While it may not have been a very cogent fact, yet taken with the other facts, it had a tendency to disprove appellant's evidence, *Page 213 which tended to show the two hogs were of the same litter. State's counsel, in the closing argument, with reference to the testimony of the witnesses Dix and Brawner, concerning the finding of the meat of the red hog, used the following language: "This testimony was introduced for the purpose of throwing light upon the theft of the black and white spotted sow, described in the indictment, and has no other bearing on the case. This matter relating to the taking of the red hog will be attended to later." Exception was reserved to this language, on the ground that there was no evidence of the theft of the red hog. The court reproved and admonished State's counsel for this argument, by stating, in the presence of the jury, that there was no evidence of the theft of the red hog, but appellant nevertheless excepted on the ground that the words had been spoken and had their effect, though withdrawn, and were calculated to emphasize the effect of the testimony admitted over appellant's objection. We are unable to perceive any injury by reason of these remarks, unless it be found in the fact that counsel said the matter relating to the taking of the red hog would be attended to later. If this had any illusion to a possibility of appellant having committed theft of the red hog, the court reproved counsel in the presence of the jury by stating to them, there was no evidence of the theft of the red hog. No special instructions were requested, and as presented we do not believe there was any such error, if error at all, as would require a reversal.
It is insisted that the evidence is not sufficient to justify the conviction. To this we cannot agree. The circumstantial evidence is strong and cogent; and in addition to this, the stepson of appellant testified positively to the theft of the hog by his step-father, and that the animal in question was the property of the alleged owner. The mere fact that he was sought to be impeached or contradicted in regard to this matter did not necessarily require the jury to disbelieve his testimony. They may have and evidently did believe it in preference to those whose evidence tended to impeach him.
The judgment is affirmed.
Affirmed.