
    BLACKBURN v. STATE.
    (No. 3827.)
    (Court of Criminal Appeals of Texas.
    Nov. 10, 1915.
    On Motion for Rehearing, Dec. 8, 1915.)
    1. Criminal Law <©=3413 — Evidence—Self-Serving Declarations.
    Where defendant, when first informed that the mules belonged to the prosecuting witness, made no explanation of his possession, evidence of his statement as to where he obtained possession, made thereafter, is inadmissible, it being a self-serving declaration.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. <@=> 413.]
    2. Criminal Law <©=>1170 — Appeal—Harm•less Er!ror.
    The exclusion of evidence of matters shown by other evidence is not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. <@=> 1170.]
    3. Criminal Law <@=>721 % — Trial — Comment oe Counsel.
    Accused, who was charged with the theft of mules which he claimed he purchased while in company with one B., showed that B. was in attendance at the last term of court, but that he had recently lost his wife and child and it was impossible for him to attend that term. Held-, that in such case it was not improper for the state’s counsel to comment on the fact that B. had not been called as a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. <@=>721%.]
    4. Larceny <@=>58 — Prosecution—Evidence.
    In a prosecution for theft of mules, evidence held to warrant a conviction on the theory that the stolen mules, found in accused’s possession, were not the same animals which he claimed to have purchased from a Mexican.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. § 166; Dec. Dig. <@=>58.]
    5. Larceny <@=>77 — Prosecution — Instructions.
    Where accused, who was found in possession of the stolen mules, claimed that he purchased them from a Mexican, a charge that if accused bought the mules he was charged with stealing, or the jury had a reasonable doubt as to that matter, he should be acquitted, is sufficient without any further charge on the law involving recent possession of stolen goods.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. <S=>77.]
    On Motion for Rehearing.
    6. Larceny <@=>04 — Prosecution — Evidence —Sufficiency.
    Unexplained possession of recently stolen property is sufficient to warrant a conviction of larceny.
    [Ed. Note. — Eor other cases, see Larceny, Cent. Dig. §§ 170-178; Dec. Dig. <@=>64J
    7. Witnesses <@=>395 — Impeachment — Corroborating Statements.
    Where the state seeks to impeach a witness by proof of contradictory statements, he may support his testimony by proof of statements similar to that on trial, unless such statements were made after the motive existed, which would likely prompt him to testify falsely.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. <@=>395.]
    8. Witnesses <@=>395 — Impeachment — Contradictory Statements.
    Where, in a prosecution for the theft of mules, the state proved a statement by accused that he had purchased the mules,, and when the proper time came would produce the check given, and accused took the stand and testified that he paid for the mules in money, accused was not impeached so as to warrant the admission of evidence of corroborating statements.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. § 1260; Dee. Dig. <@=>395.]
    Appeal from District Court, Concho County; John W. Goodwin, Judge.
    H. J. Blackburn was convicted of a theft of mules, and he appeals.
    Affirmed.
    Woodward & Baker and Snodgrass, Dibrell & Snodgrass, all of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the theft of three mules, and his punishment assessed at two years’ confinement in the state penitentiary.

S. A. Hargrove testified to the loss of three mules, and that upon information received he went to Pawhuska, Okl., and found all three of the mules in the stock pens. Mack Kyle testifies that the mules came to Paw-huska in a carload of stock shipped there by-appellant. Appellant admits that fact, and also admits that when Mr. Hargrove identified the three mules as his property, he, appellant, paid Hargrove for the mules, at that time making no explanation of liow he came into possession of the mules. However, upon his return home, the length of time not being shown, G. C. Bryson testifies that appellant told him he had purchased the mules and could show a check when the proper time came to produce it. W. E. Farmer also testifies that after appellant’s return home, appellant told him that he had gotten in trouble about a portion of the shipment of stock he had made; that Mr. Hargrove claimed three of the mules, and he had paid Hargrove for them. He also stated to Mr. Farmer that he had gotten the mules from a Mexican.

On the trial of the case appellant testified that he was buying and selling stock, and that Mr. Kirkpatrick had telephoned him about a Mexican on his, Kirkpatrick’s, place, who had three mules for sale. That he went over and he, appellant, and W. E. Brown, went down to where - the Mexicans were, and he purchased the mules from the Mexican. He did not know his name, nor where he now is; that he paid him the money, getting it from Fred Taylor. He says Taylor was in attendance on court, but neither he nor the state called Taylor as a witness. Appellant denied telling Bryson that he had paid for the mules by giving a check, and that he could produce the check when the time came to produce it. Kirkpatrick testified in behalf of appellant, and said that a Mexican on his place had tried to sell him three mules, but he did not buy, and telephoned appellant about the Mexican having the mules; that appellant came over and appellant and Brown went down to where the Mexican was at work, and when appellant and Brown returned, appellant told him he had purchased the mules. Appellant asked him to let the mules stay in his pasture for a few days, and he refused to give permission. On cross-examination he said one of the mules was a yearling, another two years old, while the third was a three year old. That he knew of appellant buying no other mules from a Mexican other than those three.

Mr. Hargrove testified that the mules he lost and which he found in appellant’s possession in Oklahoma, and which appellant paid him for, were all two year old mules.

When appellant returned from Oklahoma he had a conversation with Kirkpatrick, and desired to prove by Kirkpatrick what he, appellant, said to Kirkpatrick. This would be inadmissible, for it was not coincident with the time he claimed to have purchased the mules, nor with the time when he first knew he was charged with having stolen the mules. The court, in approving the bill, states:

“Approved with this explanation, to wit: Defendant was first seen with the mules in Oklahoma and his right challenged, and he paid Har-grove for them. The conversation offered in evidence was long after this. Kirkpatrick testified to having told defendant of these mules, and that defendant informed him at the time of the alleged purchase that he had bought them, and the defendant also testified fully to his purchase of the mules. The statement of defendant offered in evidence it occurred to me was self-serving, and an attempt to bolster his evidence by self-serving declaration.”

Appellant contends that the court erred in not permitting him to prove by the witness Kirkpatrick that at a former trial of the case the case was submitted to the jury alone upon the evidence of the state, and upon the testimony of the state’s witnesses, Hargrove and Bryson, and that Earmer and Kyle were not -present, and did not testify. This was amply shown by other testimony. On the cross-examination of Kyle appellant asked if he did not know he could not be compelled to come to Texas to testify; that he had received $20 to pay his expenses, and he expected to receive $2 per day for his time and all his expenses. That he had never testified before. Appellant was permitted to prove that Brown was in attendance on the last term of court, and that he had recently lost his wife and one of his children, and it was therefore impossible for him to attend court. The witness Kirkpatrick could not possibly know why appellant and his attorneys had not placed Brown on the witness stand when he was in attendance on court. They alone would know why they did not do so, and if they offered to testify why they did not do so, we are sure the court would not have sustained an objection to them so testifying. And as no such explanation was forthcoming, it was not improper for the state’s counsel to comment on the fact, that while appellant testified that Brown was present when he purchased the mules from the Mexican, he had not been called as a witness. As appellant had proved the condition of Brown’s family as' a reason why he was not in attendance, and the further fact that he was present at the former term and had not been called to testify, the remarks of state’s counsel were within the record.

As far as this record discloses no one knows what Brown would have testified had he been present, and if he had testified as did Kirkpatrick, that appellant did purchase three mules from a Mexican, but also testified that they were one, two, and three years old, it would not have materially aided appellant. Appellant contends there is no testimony showing the falsity of his statement that the mules lost by Hargrove and found in his possession in Oklahoma were not the mules he claimed to have purchased from the Mexican. The mules Hargrove lost were two years old, while under this record the mules he says he purchased from the Mexican were a yearling, a two and a three year old. This would have a very strong tendency to lead a jury to believe that the mules he claimed to have purchased from the Mexican were not the Hargrove mules.

Appellant also contends that the court erred in failing to give his special charges on explanation of possession of recently stolen property. Appellant gave no explanation when first charged with the offense in Oklahoma, nor when he paid Hargrove for the mules. It is after his return to Texas he first makes a statement or claim that he had purchased the mules from a Mexican. The court in his charge instructed the jury:

“If you find from the testimony that the defendant bought the mules he is charged with stealing, or if you have a reasonable doubt as to his having bought said mules, you will acquit him.”

This character of charge was approved in Mathews v. State, 32 Tex. Cr. R. 357, 23 S. W. 690, and it was held not to be error to give any other charge on defendant’s explanation. In this case, as in that case, the defendant’s explanation was a purchase, and he gave no other explanation. See, also. Wheeler v. State, 34 Tex. Cr. R. 354, 30 S. W. 913; Holmes v. State, 38 Tex. Cr. R. 370, 42 S. W. 980; Sisk v. State, 42 S. W. 987; Ford v. State, 41 Tex. Cr. R. 1, 51 S. W. 936, and cases cited. In the case of Hays v. State, 36 Tex. Cr. R. 534, 38 S. W. 171, this court said:

“When the defendant was arrested he was found” in possession of the stolen property. “The second bill of exceptions is an insistence on the part of defendant that the court committed an error in not charging on recent possession, in connection with the explanation of the defendant. * • * While the court did not give, in terms, a charge on possession and explanation, he did that which was better, authorized the jury to acquit the defendant if they believed that the defendant bought the pistol, * * * or if they had a reasonable doubt concerning that matter.”

Such a charge as that given by the court, instead of the more lengthy one on possession and explanation, was held to be preferable in the case against 'Douglas Whitfield, decided at the present term of this court.

We have carefully examined each question in the motion for a new trial, and none of them present any error which would call for a reversal of the case.

The judgment is affirmed.

On Motion for Rehearing.

Appellant has filed a motion for rehearing in this cause; one of the grounds being that the evidence is of too weak and unsatisfactory character to permit the verdict to stand. The theft of three mules from Mr. Hargrove is shown beyond the shadow of a doubt; this fact is not questioned in the record. Shortly thereafter the stolen animals are found in possession of appellant in Oklahoma. At that time he gives no explanation of his possession, but proceeds to pay Mr. Hargrove for the stolen animals. If he had any explanation to give of his possession of the stolen animals, then it was it should have been given instead of merely paying for the property when his possession of the mules' was challenged. Instead of doing so, he is as silent as the grave as to how he came in possession of the stolen property. Under all of our decisions this testimony has been held sufficient to sustain a verdict. Payne v. State, 21 Tex. App. 187, 17 S. W. 463; Morgan v. State, 25 Tex. App. 513, 8 S. W. 487; Rust v. State, 31 Tex. Cr. R. 77, 19 S. W. 763; Roberts v. State, 60 Tex. Cr. R. 23, 129 S. W. 611; Powers v, State, 72 Tex. Cr. R. 290, 162 S. W. 833, and cases cited.

The state, in making its case, proved by J. O. Bryson, after appellant had returned to Texas, that he had a conversation with appellant in which appellant told him he had purchased the mules and could produce the check; that he could produce the check at the proper time. The state also proved by W. E. Farmer that after appellant’s return to Texas he had a talk with him about the mules in question. That appellant said Mr. Hargrove came to Oklahoma and accused him of stealing the mules, and he paid Har-grove for them. That he purchased the mules from a Mexican.

After the state had made this proof appellant took the witness stand and testified that he purchased the three mules in question from a Mexican, and paid him $150 for them. That he got the money from Fred Taylor, and paid the Mexican in money. That he never told Bryson he gave the Mexican a check for the money.

After having so testified, he desired to prove by E. S. Kirkpatrick that after Hargrove had claimed the mules and after he had paid Hargrove for the mules, and after his, appellant’s, return to Texas, that he, appellant, told Kirkpatrick that “he paid the Mexican $150 for the mules.” Appellant earnestly insists that we erred in holding that the court did not err in refusing to permit Kirkpatrick to testify that appellant told him after his return to Texas he paid the Mexican $150 for the mules, that we must have overlooked the case of Hudson v. State, 49 Tex. Cr. R. 24, 90 S. W. 177, and desires to know if we intend to overrule that case. It is true our attention was not called to this case in the brief of counsel or otherwise, at the time the original opinion was written, but we will say that we do not desire nor intend to overrule the rule of law therein announced. In that case appellant testified on the trial that he was 14 years of age. On this statement the state sought to impeach him, and introduced three witnesses who testified that Hughes had told them he was 16 years of age. The court held that Hughes should have been permitted to support his testimony by proving that he testified before the grand jury when carried before them by the district attorney that he was only 14 years of age. It has always been the rule in this state that when the state seeks to impeach a witness by proof of contradictory statements, he may support his testimony by showing that he had made similar statements to that he testified to on the trial. This is not only the rule announced in the Hudson Case, supra, but it has been so held in Williams v. State, 24 Tex. App. 666, 7 S. W. 333, Craig v. State, 30 Tex. App. 619, 18 S. W. 297, Campbell v. State, 35 Tex. Cr. R. 163, 32 S. W. 774, Pitts v. State, 60 Tex. Cr. R. 524, 132 S. W. 801, and cases cited in Branch’s Crim. Law, § 874. But the. rule is equally well settled in this state that proof of statements made in harmony with his testimony made after the motive existed which wouid likely prompt him to testify falsely cannot be introduced to support his testimony on the trial. Conway v. State, 33 Tex. Cr. R. 330, 26 S. W. 401; Sanders v. State, 31 Tex. Cr. R. 529, 21 S. W. 258; Anderson v. State, 50 Tex. Cr. R. 136, 95 S. W. 1037; Porter v. State, 50 S. W. 380. In this case it is made plain that it was after appellant had been charged with the theft of these mules, and after he had paid Hargrove for them, and after he had returned from Oklahoma, that he made the statement to Kirkpatrick, and the same motive existed then to testify falsely as existed on the trial of this case. In the Hudson Case it is not made to appear that it was after Hudson had been charged with an offense that he made the statement held to be admissible, and if it did so appear it would not be in, harmony with a long list. of authorities in this state, and as announced in 7 Ency. of Ev. p. 286. See, also, Barkly v. Copeland, 74 Cal. 1, 15 Pac. 807, 5 Am. St. Rep. 413; McCord v. State, 83 Ga. 521, 10 S. E. 437; Waller v. People, 209 Ill. 284, 70 N. E. 681; State v. Vincent, 24 Iowa, 570, 95 Am. Dec. 753; State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; State v. Fontenot, 48 La. Ann. 283, 19 South. 113; Commonwealth y. Jenkins, 10 Gray (Mass.) 485; People v. Finnegan, 1 Parker Cr. R. (N. Y.) 147; State v. Exum, 138 N. C. 599, 50 S. E. 283; Commonwealth v. Brown, 23 Pa. Super. Ct. 470; State v. McDaniel, 68 S. C. 304, 47 S. E. 384, 102 Am. St. Rep. 661; Legere v. State, 111 Tenn. 368, 77 S. W. 1059, 102 Am. St. Rep. 781. In addition to this, the state had not sought to impeach the defendant in this case.

The state made its case, and in doing so 'proved by a witness that appellant claimed to have purchased the mules, and when the proper time came said he would produce a check given the Mexican for the mules. After this testimony had been adduced, appellant took the stand and denied ever having told the state’s witness any such thing. He then testified that he purchased the mules and paid the Mexican in money. After appellant testified the state offered no testimony in rebuttal. So there is no question of impeaching a witness in this case. Again, the alleged testimony of Kirkpatrick would tend no more to support the testimony of appellant than it would tend to support the testimony of the state’s witness. The difference in the testimony is the state’s witness testified that appellant told him he paid the Mexican by giving him a check, and would produce it at the proper time. Appellant says he did not tell the witness this, but testifies he paid the Mexican in money. Kirkpatrick’s testimony, as alleged, would only be that appellant told him he paid the Mexican $150 for the mules, without saying whether he paid it in money or by giving a check.

Appellant says' that we laid too much emphasis on the age of the mules, as testified to by the witnesses. Hargrove testified about the mules found in possession of appellant in Oklahoma as follows:

“They were my mules; these mules were taken from my pasture without my consent. I bought these mules from E. B. Noel; they were yearling mules, coming two’s — you might say two years old” — making them all the same age.

Appellant said Kirkpatrick called his attention to the mules he claimed to have purchased from the Mexican, and Kirkpatrick testified the mules he called appellant’s attention to were of the following ages:

“One of those mules was a yearling mule, and the other would be near two years old; and one of them was a three year old.”

This was the testimony on the trial, and we do not think too much emphasis was placed on this discrepancy in the ages of the mules appellant claimed to have purchased from the Mexican. The description did not fit the Hargrove mules found in his possession.

All the other questions were discussed in the original opinion, and we do not deem it necessary to do so again, but we have again discussed the above questions owing to the insistence of appellant’s counsel.

The motion for rehearing is overruled. 
      <@=>Eor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     