
    TUCKER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 12, 1912.
    Rehearing Denied Oct. 16, 1912.)
    1. Larceny (§ 55)—Sufficiency op Evidence.
    Evidence in a prosecution for the theft of seed cotton held to sustain a verdict of guilty.
    [Ed. Note.—F-or other eases, see Larceny,. Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    2. Cbiminal Law (§ 829)—Instructions— Alibi.
    Where, in a prosecution for the theft of' seed cotton, the court properly instructed on, reasonable doubt, and, at defendant’s request, specifically instructed the jury to acquit if they believed some one else, and not defendant, stole the cotton, or had a reasonable doubt thereof, it was not error to refuse defendant’s-requested instructions that the jury should acquit if they 'believed that the defendant loaded his wagon, and went to bed and stayed in-his room, and did not go and steal the cotton, and that he was at home at the time the cotton was stolen.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    3. Criminal Law (§ 811)—Instructions— Isolated Facts.
    It is improper to pick out isolated facts, and instruct the jury to acquit defendant, if they find a particular fact a certain way.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1787, 1969-1972; Dec. Dig. § 811.]
    4. Criminal Law (§ 1169)—Appeal and Error— Harmless Error— Admission op 'Evidence.
    The admission of certain of the state’s testimony, if error, was harmless, where defendant voluntarily proved the same facts in full by his own witnesses.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. § 1169.]
    5. Witnesses (§ 379) — Impeaching Evidence—Hearsay—Admissibility.
    In the trial of one for the theft of seed cotton, it was not error, for the purpose of impeaching a witness to admit evidence of statements made by such witness, though not made in defendant’s presence, and not binding upon him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    6. Criminal Law (§ 834) — Appeal—Objections Below — Requested Instructions— Modification.
    It was not available error to add to the defendant’s requested instruction to not consider the testimony of a certain witness for any purpose the words, “save as to impeachment if it does so impeach,” where the defendant accepted the instruction with this qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2013, 2014; Dec. Dig. § 834.]
    7. Courts (§ 90) — Appeal—Statement, op Facts — Form and Sufficiency.
    Where a statement of facts was made up in violation of all the rules applicable thereto, the fact that the court considered it is not a precedent for the consideration of similar statements in other cases.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 313-321, 351; Dec. Dig, § 90.]
    Appeal from Travis County Court; R. E. White, Judge.
    Matthew Tucker was convicted of theft of cotton, and he appeals.
    Affirmed.
    Dickens & Dickens, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   PRENDERGAST, J.

By proper information appellant was charged with the theft of 200 pounds of seed cotton worth' $10, the property of Frank Hodge, was convicted, and his punishment fixed at 10 days in jail and $25 fine.

Only a brief statement of the evidence is necessary to understand the questions presented.

Frank Hodge testified: That on September 30, 1910, he and certain cotton pickers for him had picked 1,050 pounds of seed cotton, and placed it, on the evening of that day, in his wagon in his field. When they got through picking that evening, they put certain cotton sacks in the wagon, covered up with seed cotton. One of these belonged to a certain negro woman, and was by the witnesses clearly identified by various particulars fixing its description and identity. That some time that night a buggy with a horse hitched to it, shod in front, and a mule and a colt’s tracks were .discovered as having been driven from the place of appellant’s father, who lived near the witness, into the witness’ field, and near where the wagon and his cotton were. That there were men’s tracks back and forth from where this buggy and animals had been stopped to his wagon, and one special cotton sack and about 200 pounds of his cotton were stolen. A strange cotton sack was left in his wagon. It was also shown that appellant’s father, with whom he lived, had a gray mare, a number of mules, and a colt of said mare. There was much dispute in the testimony whether the front feet of appellant’s father’s mare was shod or not at that particular time. The testimony is sufficient for the jury to have believed that she was so shod, though, perhaps, a greater amount of the testimony was to the reverse. The next morning, when said witness found some of his cotton gone and these tracks, he tracked the buggy and the animals back and forth from appellant’s father’s place into his field, and down to an old empty house a few hundred yards from appellant’s father’s residence, and in said house he found signs showing where seed cotton had been put in and taken out of that house. There was also therein found this particular woman’s sack who had picked for him the day before, and which had been placed under the seed cotton in his wagon, and left there the night before.

Jerre Hemphill testified that he on the next morning after September 30, 1910, found these same buggy, horse, mule, and colt’s tracks, and that they had been stopped near some cotton of his which was stolen that night; that he traced these tracks from where they entered the field of the witness Hodge and himself, and his testimony as to the identity, and these buggy, horse, mule, and colt tracks went back and forth and to the said empty house on appellant’s father’s place, substantially as Hodge testified; that on the Friday night the cotton was stolen he went by the Tuckers after night with others, going to a dance, and that at that time he saw some one in appellant’s father’s lot with the said old gray mare.

8am Brown testified that on that Friday night Watt Tucker, a brother of appellant, and himself, were coming up the road, going to Williams’ to a supper, and, when they got to the gate near appellant’s father’s house, the appellant and Sam, appellant’s brother, came up, going to their father’s place; that Sam was in a buggy with three large sacks of cotton lying lengthwise; that appellant was on a mule, and had a sack of cotton lying across the mule’s back in front of him; that he opened the gate to let them pass through, which they did, and they went on in the direction of the Tucker house; that Sam was driving the Tucker gray mare, and her colt was following along with them.

Essie Keys testified that she and her husband picked cotton for the complaining witness, Frank Hodge, the day before the night of which the cotton was stolen. She testified that she picked in that certain peculiar sack and described it, which was identified as the sack by the other witnesses in which she picked that day, and which the other witnesses testified was left in his wagon covered up by the seed cotton that night.

George Matthews, the sheriff, testified: That on said morning after the theft of the cotton Friday night he was called to the scene, and went to the field, where Hodge had cotton In Ms wagon. He confirmed, by Ms testimony, the buggy, mule, horse, and colt’s tracks as identified and described by Hodge. That there was loose cotton scattered between Hodge’s wagon and where the buggy and animals had been stopped. He went to the empty house on the Tucker place, and described about finding the loose locks of cotton therein that Hodge testified about. That the tracks of the horse looked as if the horse might have been shod in front. The ground in the field was soft, and the tracks were fairly distinct, but were such tracks as could be made in that kind of ground by an unshod horse whose feet were not worn or jagged. The horse’s tracks, however, showed that it had on shoes on the front feet. He never traced the buggy and horse tracks any further than the gap in the fence to the Tucker place.

M. Rodriguez testified that on said Friday he went from Creedmore in his buggy, working a bay mare which had a colt about the same age of the Tucker mare’s colt; that he returned home after dark between 8 and 9 o’clock, living near the Tuckers; that when he got to the gate going through Tucker’s pasture he met Watt Tucker and Sam Brown, and they held the gate open for him to pass through.

A. L. Hughes, for the state, testified about the tracks of the buggy and animals substantially as Hodge and the other witnesses had testified and about the man’s tracks and the loose cotton back and forth from Hodge’s wagon to .where the buggy had been stopped, and also the tracks of the buggy and animals up to the empty house on the Tucker place.

The appellant himself testified, denying stealing the cotton, and denying, in effect, all of the testimony of the state criminating him. He and his father, brothers and sisters, a number of them, testified to such facts, if believed, would have established an alibi for him; that he was at home continuously from before sundown through the whole night, and was not away from the place during that night. Appellant also introduced much testimony showing that others in the same community had horses, colts, and mules of about the same size, age, etc., as the Tucker gray mare and her colt and mules, and that there were numerous buggies in the community.

Appellant requested some 15 special charges, 7 of which were given and the others refused. Proper bills were saved to those refused.

The appellant did not request any charge on alibi, such as are usually given, when given at all, by the court; but has said several charges on that subject were of specific facts, such as, in one, “if they believed he loaded his wagon with seed and went to bed and stayed in his room and did not go and steal the cotton, or if they had a reasonable doubt of it, to acquit him.” In another that, if he was at home at the time the cotton was stolen, if it was stolen, or if they had a reasonable doubt of it, to acquit him. The court charged on circumstantial evidence. He also in the main charge required the jury to believe-beyond a reasonable doubt that the appellant, as charged in the information, fraudulently took from the possession of Frank Hodge the property described therein without the consent of the owner, with intent to deprive the Owner of the value of the same and to appropriate it to his own use or benefit, before they could find him guilty. Also the reasonable doubt as to the whole case. Then, instead of giving appellant’s two special charges above noted, he gave this special charge at his instance; “If the jury believes from the evidence that any one else, and not this defendant, stole said cotton, if it was stolen, or if you have a reasonable doubt as to this, you will find this defendant not guilty.” It is the well-established law of this state that, when the question of alibi arises in a case and the reasonable doubt in his favor is given, it is not necessary for the court to specially charge thereon, because in submitting, as was done in this case, that the jury could not find appellant guilty, unless they believed beyond a reasonable doubt that he fraudulently took the property, etc., necessarily includes alibi, unless a special charge on alibi is requested, and that when in addition to the submission of the question for the main finding as above stated, and the reasonable doubt, the court in effect requires the jury to believe that the appellant and no one else fraudulently took the property, etc., that the question of alibi is sufficiently submitted. Jones v. State, 53 Tex. Cr. R. 138, 110 S. W. 741, 126 Am. St. Rep. 776; Phillips v. State, 57 Tex. Cr. R. 162, 121 S. W. 1110. It is our opinion that, taking the main charge of the court as above stated requiring the jury to believe beyond a reasonable doubt that the appellant fraudulently took the cotton as charged in the information, and then gave the special charge above quoted which was requested by appeliant, and the reasonable doubt, that the question of alibi is sufficiently and clearly covered, and that no error was committed by the court in refusing the two special charges above mentioned.

By another special charge requested which was refused appellant picked out a certain isolated fact that if the jury believed that the person who stole said cotton, if it was stolen, had a horse with shoes on and appellant did not own or drive a horse with shoes on, to acquit him. This was sufficiently and clearly embraced in the submission of the case under the main charge of the court and those given at the appellant’s request. It would be improper to pick out isolated facts and charge the jury that, if they found that particular fact a certain way, to acquit him, but the whole case must be properly submitted upon all the evidence, as was done in this case.

By some bills and special refused charges appellant raised this question: The state was permitted to prove that when the particular sack of said woman was found in the Tucker old vacant house to which the buggy tracks had been traced, and which showed that cotton had been placed in and removed therefrom, and which was the same sack that she had picked cotton in for Hodge the day before, and had been placed in his wagon and covered up with the seed cotton, and from which wagon the cotton had been stolen and said sack taken the night before, that this particular sack was mixed up promiscuously with several others, the woman was sent for, and she came, and, upon being asked if she could pick out and identify her said sack from the others, she stated that she could, and did do so, which said sack' was produced and identified by the witnesses on the trial of this cause, claiming that this was improper and irrelevant because at the time she was sent for and was requested to pick out and identify her sack from the others and did do so the appellant was not present, and not bound thereby. The bills and charges raising this question are very general, and do not sufficiently and specifically give the facts so as to show this court whether or not -the said testimony was inadmissible; but, conceding that the bills and charges are sufficient, this evidence does not present reversible error, because, if for no other reason, the appellant himself introduced the said woman as a witness, and voluntarily proved in full the same facts that he objected to the state proving by other witnesses. It is an established rule that under such circumstances such question does not present reversible error.

By one bill appellant shows that, after the state and he had rested, the state called -Lawrence McKinley in rebuttal, and, over his objections, the witness testified that “I was at John Williams’ house the night Sam Brown and Watt Tucker came there. They came between 8 and 9 o’clock. We sat out on the ground. Sam wanted me to go to Creedmore the next day. Sam Brown told me that he had seen the Tucker boys, Matthew and Sam, with some cotton that night. * * * The defendant was not there.” He objected to said testimony as hearsay, prejudicial, being remarks of other persons, and not binding on him, not in rebuttal, and was irrelevant and immaterial. The court in approving the bill qualified it by stating “this testimony was admitted for the purpose of impeaching the testimony of the witness Watt Tucker.” This bill is very general, and does not give the court the facts sufficiently to show that the testimony was erroneously admitted. He accepted the bill with the qualification of the court, and, as qualified, it does not show error. We take it that the court’s statement that it was admitted for the purpose of impeaching the testimony of Watt Tucker was true, and we can readily see how it was admissible for that purpose.

Another bill shows the same character of testimony of the witness Sam Brown and the objections thereto with the same qualification by the court. No error is shown thereby.

By a special charge appellant requested that the said testimony of said Sam Brown be not considered for any purpose. The court, after adding this to the charge, “save as to impeachment, if it does so impeach,” gave it. Appellant complains that the court had no right to add to his special charge. However, he accepted it, and it was given at his instance with the qualification. There was no error in this. The statute (C. C. P., art. 737 [717]) on the subject of giving or refusing the charges that are asked says: “The court shall either give or refuse these charges with or,without modification.” . .

We have carefully gone overall of appellant’s other complaints, and in our opinion no reversible error is shown. The evidence would have justified the jury to have found the appellant not guilty. Clearly it did justify the jury in finding the appellant guilty. There being sufficient testimony on either side and the jury having solved it against appellant, we cannot disturb the verdict on that account.

When this record was first presented to this court and the case submitted, the statement of facts in its original form only was sent up. It was not contained in. the record and covered by the certificate of the clerk. Upon a proper showing, however, the appellant was awarded a certiorari to have this defect cured, he making such a showing at the time as to justify the court in doing so. However, it presents an important question of practice, and raises the question of whether or not this court should consider the statement of facts as it was filed in, and still remains on file with, this cause. The statement in several pages has many vacant spaces therein. There are many interlineations and additions in longhand to the statement of which the body is typewritten. On one page in one of the small blank places there is pinned with ordinary pins a loose page about the middle of the page, of closely typewritten matter which of itself would make more than one full page of ordinary typewriting. It' is in different colored ink from that of the body of the statement of facts. In other places here and , there .are pasted strips on which is typewritten matter in a different ink from the body of the statement, In some of the longhand matter that is interlined and added from place to place, it appears td have been first written with pencil, then attempted to be traced with pen and ink. Some of the interlinea-tions are in pencil still. Others are in ink. There are still other little strips of typewritten matter in a different ink from that of the body of the statement of facts pinned on the edges of some of the sheets, which, when folded, cover up a part of the original statement. They are pinned on loosely with an ordinary pin. Other added matters in different colored ink are pasted on the sheets.

Such a statement made up in this way, even for the lower court, is in violation of all the rules on the subject, and we have grave doubts of whether such a statement, when the facts are brought to the knowledge of the court, should be considered at all, and our considering them in this case shall not be a precedent for the consideration of such a statement of facts hereafter in any other, case. It was shown to us in this case that the condition of this statement of facts was brought about by the fact that the county attorney who tried the case in the court below died before this statement was acted upon by the county attorney’s department and the county judge. There is no intimation by this court that the statement of facts has been improperly tampered with. We are satisfied from the showing made to this court that such is not the fact. It is probable, however, that if the state had made a motion to strike out the statement of facts, and not consider it because of its condition, this court would have sustained it. We state all this so as to call attention of the lower courts to such matters, so that in the future statement of facts will be so prepared as to comply with the rules and thereby prevent even the semblance of such matter as might raise a suspicion of the correctness and validity of a statement of facts.

The judgment will be affirmed.  