This case was affirmed at a previous day of this term, and now comes before us on motion for rehearing.
Appellant calls our attention to an assignment not considered in the original opinion, to wit: that the court should have instructed on other contemporaneous thefts introduced in evidence. We note in the cross-examination of the witness Henry White that he states that he hauled three loads of lumber for Keener altogether from the Harrell Lumber Yard. But for the fact this matter was adduced in cross-examination this question would not have arisen, and it does not occur to us that appellant, having drawn this matter into the case, could complain, because same was not limited by the court in its charge. However, the testimony on the part of the State shows that appellant was prosecuted for but one taking; that is, for hauling one load of lumber from the Harrel Lumber Yard on the 17th of March, 1906. The prosecution was based solely on this transaction. There is no question that the amount of lumber hauled by the wagon on that occasion would constitute a case of felony, as the witness says that his wagon was capable of hauling an ordinary load from two to three thousand feet, and this was an extraordinary large load of lumber hauled on the 17th of March. The lumber was proved to be of the value of $35 a thousand. The jury gave the appellant the lowest punishment, two years, and even if it be conceded that the court ought to have charged as to the taking of the other loads of lumber, no possible injury accrued to appellant on account of the failure of the court to so limit said testimony.
It is not necessary to discuss the matters treated in the original opinion.
Motion for rehearing is overruled.
Brooks, Judge, absent.
Overruled. *Page 595