
    WALKER v. STATE.
    (No. 3803.)
    (Court of Criminal Appeals of Texas.
    Dec. 1, 1915.
    Rehearing Denied Jan. 5, 1916.)
    1. Criminal Law <©=>829— Instructions — Repetition.
    On a trial for cow theft, where the question as to whether the cow was taken by defendant by mistake for one he claimed to own was properly submitted in a special charge requested by defendant, the refusal of other charges on that question was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;829.]
    2. Criminal Law <&wkey;808% — Instructions— Reading Statute — “Mistake.”
    Where, on a trial for cow theft, the court at defendant’s request submitted the question of whether the cow was taken by mistake for one plaintiff claimed to own, the court properly gave a special charge, requested by the state, defining the law of mistake in the terms of Pen. Code 1911, arts. 46, 47, which provides that no mistake of law excuses one committing an offense, but that if a person laboring under a mistake as to a particular fact shall do an act which would otherwise be criminal, he is guilty of no offense, and that the mistake as to a fact which will excuse must be such that the person acting under the mistake would have been excusable had his conjecture as to the fact been correct, and that it must also be such mistake as does not arise from a want of proper care on the part of the person committing the offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1811; Dee. Dig. <©=>808%.]
    3. Criminal Law <&wkey;808% — Instructions— Statutes.
    Where, at defendant’s request, the court, on a trial for cow theft, submitted the question of whether the cow was taken by mistake and charged the provisions of Pen. Code 1911, arts. 46, 47, regarding mistakes, the use of the word “conjecture” precisely as used in the statute did not render the charge objectionable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1811; Dec. Dig. <©=>80814.J
    4. Criminal Law <&wkey;841 — Instructions — Objections — Time eoe Objections.
    An objection to an instruction made after the trial was too late under the very terms of the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2022; Dee. Dig. &wkey;>841.]
    5. Criminal Law <&wkey;810 — Instructions — Inconsistent Instructions.
    Where, on a trial for cow theft, the testimony raised and the court without objection charged on the subject of principals, a charge on alibi would have been in direct conflict therewith.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. § 1968; Dec. Dig. <©=>810.]
    6. Criminal Law <&wkey;949 — Appeal—Proceedings in Lower Court Subsequent to Appeal.
    Where, after defendant’s motions for a new trial were overruled, he gave notice of appeal, and the judgment overruling his motions and his exception and notice of appeal were duly entered, and he never attempted to withdraw his notice of appeal, the court properly refused to permit him to file supplemental motions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. <©=>949.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Cal Walker was convicted of cow theft, and he appeals.
    Affirmed.
    R, H. Smith and H. D. Wood, both of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of cow theft and assessed the lowest punishment. We see no necessity of any statement of the evidence. It was amply sufficient to sustain the verdict on any and all theories and questions raised.

From the appellant’s standpoint, the evidence was perhaps sufficient to raise the question of whether or not the cow he had and sold was taken by mistake for a cow he claimed to have owned. But, in any event, this question was properly submitted by the court in a special charge requested by him in the very language he requested it. The court, therefore, committed no error in refusing to give his other charges on that subject, even if they had been presented at a time to have required the court to have passed upon them at all. Some of them, perhaps all other than the one given by the court, did not present propier propositions of law applicable to this case.

When the court gave the said special charge of appellant on said subject, it was not only proper, but necessary, to give in the same connection the special charge requested by the state defining in the very terms of the statute (P. O. 1911, arts. 46, 47) the law about mistake. Appellant’s only objection to this charge at the time was in effect to the use of the word “conjecture.” His objection was untenable. The charge was a quotation of the statute, which uses the word “conjecture” in precisely the language in the charge. The special charge in the latter paragraph also quoted substantially, if not literally, article 52, P. C. No objection whatever was made to that paragraph of the charge before the trial. His objection, made after the trial, is too late under the very terms of the statute.

In our opinion, the court did not err in refusing appellant’s special charge on the subject of alibi. A charge on that subject was inapplicable in this case. The testimony raised, and the court properly submitted, the law of principals in the case, to which appellant made no objection. As the testimony raised, and the court charged on, the subject of principals, a charge on alibi would have been in direct conflict, and was not really raised by the testimony at all. Dillard v. State, 177 S. W. 103 et seq., and authorities therein cited. Smith v. State, 21 Tex. App. 107; Cook v. State, 14 Tex. App. 96; Bean v. State, 17 Tex. App. 61; Welsh v. State, 3 Tex. App. 413; Scales v. State, 7 Tex. App. 361; McKeen v. State, 7 Tex. App. 631; McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726; Cohea v. State, 9 Tex. App. 173; and numerous other eases cited in the opinion in Smith v. State, supra. The opinion in the Smith Case is quoted at length •in the case of Dillard v. State, supra. Many other cases are cited in the Dillard and Smith Cases applicable and in point.

The term of court at which this case was tried convened on April 5, 1915, and adjourned on July 3, 1915. The case was tried and the verdict rendered on April 22, 1915. Within two days thereafter appellant filed his motion for a new trial. On April 24th, he filed an additional motion for new trial. These were heard and overruled by the court on May 6, 1915, at which time he duly excepted, and gave notice of appeal to this court, which judgment overruling his motions, his exception and notice of appeal were then duly entered. Still later, on May 19, 1915, appellant made a motion, requesting the court to permit him to file another supplemental motion. This and the supplemental motion were presented to the judge without filing. The judge indorsed and signed thereon:

“I refuse to give permission to file this motion or to act on same after having read same. Deft, excepts this 5/19/1915.”

It seems that one month later the same motion was again presented to the judge, who again on that date made and signed the same indorsement thereon. There was no request at any time, or in any way, by the appellant to withdraw his notice of appeal. Under these circumstances, the court’s action in refusing to permit him to file said motion was correct.' This question has been repeatedly held against him by this court. The latest case is Tores v. State, 166 S. W. 527. It is unnecessary to discuss the question again.

These are the only questions briefed, and also orally argued by appellant when this cause was submitted. They embrace substantially all the material questions he has raised. He, however, stated in oral argument, and it is also in his brief, that the other questions raised by him are not waived, and asked the court to consider them. We have examined all of his claimed errors, but none of them show any reversible error.

The judgment is affirmed. 
      
       17 S. W. 552.
     
      @=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     