
    LONGORIA v. STATE.
    (No. 4192.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Cbimotai, Law <&wkey;878(2) — General Veb-bict — Application by Court.
    Where, on a trial under an indictment, charging in one count cattle theft, and in another count receiving the cattle, knowing them to have been stolen, the court submitted both counts for a finding in charges to which there was no objection, and accused did not seek to have the state elect on which count a conviction would be sought, and the jury found accused guilty as charged in the indictment, and the evidence amply sustained a conviction for theft the court properly applied the verdict to the count charging theft.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Di'g. § 2099; Dec. Dig. &wkey;>878(2_).]
    2. Criminal Law <&wkey;1105(l) — Record — Stenographer’s Report.
    The court on appeal in a criminal case is restricted to a consideration of the facts agreed to and approved by the trial judge and the bill of exceptions in the record and acted on by the judge, and it cannot consider the stenographer’s report of the case not approved by the trial judge, nor agreed to by the attorneys.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. § 2887; Dec. Dig. <§=»1105(1).]
    3. Criminal Law ¡&wkey;1037(2) — Trial — Misconduct oe Prosecuting Attorney — Record-Review.
    The action of the trial court in permitting the district attorney to make a statement in arguing before the judge on the admissibility of the testimony is not reviewable where accused merely objected to the statement, and did not request the court to instruct the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. <&wkey; 1037(2).]
    4. Criminal Law <&wkey;369(2) — Evidence oe Other Oeeenses — Admissibility.
    Where circumstantial evidence is relied on to prove guilt, evidence of another distinct offense connecting, or tending to connect, accused with the offense charged, or tending to defeat his defensive theory is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822, 823; Dee. Dig. <&wkey;> 369(2).]
    5. Criminal Law <&wkey;1169(5) — Harmless Error-Rulings on Evidence.
    On trial for cattle theft, the error, if any, in admitting evidence of the theft by accused of other cattle was cured by the court withdrawing the evidence and directing the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3141; Dec. Dig. &wkey;>1169(5).]
    6. Criminal Law <&wkey;1092(ll) — Appeal—Bill oe Exceptions.
    A bill of exceptions not approved by the trial judge cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2837, 2841, 2843; Dec. Dig. &wkey;1092(ll).]
    7. Witnesses <&wkey;379(l) — Impeachment — Proof oe Contradictory Statements.
    A witness may be impeached on laying the proper predicate by proving statements by him in conflict with his testimony.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1247; Dec. Dig. &wkey;>379(l).]
    Appeal from District Court, Brooks County ; V. W. Taylor, Judge.
    Tristan Longoria was convicted of cattle theft, and he appeals.
    Affirmed.
    See, also, 188 S. W. 987.
    J. W. Wilson, of Falfurrias, and Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty.. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the theft of 37 head of cattle, and the lowest punishment was assessed.

The indictment was in two distinct counts. The first was for the theft of said cattle, and the second was for receiving them, knowing them to have been stolen, etc. Each count follows the approved forms and the statute, and each was clearly sufficient. Appellant made a motion to quash the indictment on the sole ground that neither count charged any offense under the law. The court correctly overruled his motion to quash.

We have carefully read and studied the testimony. His conviction was based upon circumstantial testimony alone. In our opinion, it was amply sufficient to sustain the conviction. We. see no necessity of reciting it.

The court in his charge submitted both counts for a finding in proper and correct charges, to which there was no objection. Appellant in no way sought to have the state to elect upon which count a conviction was sought. The verdict of the jury found appellant guilty “as charged in the indictment.” The court applied it to the theft count. At the time, appellant in no way either objected to the verdict or the application of it, as stated; but two days thereafter, he, by motion, sought to arrest the judgment, which was contested by the state, claiming that because the verdict itself did not specify under which count they found him guilty, it was therefore ‘Impossible in fact and in law, and means nothing, and is void”; which the court overruled.

In our opinion, the evidence was insufficient to sustain a conviction for receiving thé stolen property knowing it to have been stolen, but, as stated, it would amply sustain the theft by appellant of the property. The doctrine, therefore, of applying the verdict by the court, which was done, to that count of the indictment which the evidence sustained, was clearly correct. Section 902, White’s An. O. O. P., where Judge White collates and cites a large number of cases from this court and the Supreme Court. We deem it unnecessary to copy here the said cases by Judge White and many others later to the same effect. The doctrine and application of it is too clear to need discussion. The two counts were for the same transaction or offense. Such pleading is not only expressly authorized by our statute (article 481, C. C. P.), but has always been commended by this court (sections 402, 403, White’s An. C. O. P.).

It seems appellant’s attorneys have the idea that this court can refer to and consider the stenographer’s report of the case, for they frequently refer to it in their brief, and we find such document on file here with the papers of this cause. This is a mistake. This document in no way bears the approval of the trial judge, nor is it agreed to by the attorneys for either side. We are restricted to a consideration of the statement of facts agreed to and approved by the trial judge and the bills of exceptions as contained in the record and acted upon by the judge.

Appellant’s first bill shows that while Mc-Murray, a state’s witness, was upon the stand, he testified, in answer to the district attorney’s questions, that he had seen on appellant's ranch another bunch of cattle with the old brand of the owner Jones burned into that of appellant other than a part of which had been driven home, and that he objected to this. The court, in passing upon this bill, stated that he never overruled appellant’s objections to this testimony. It seems that he made no ruling at all at the time.

His next bill is to the continued testimony of this same witness along the same line, which was to the effect that he did not remember the exact day on which he saw these additional cattle on appellant’s ranch, and that in addition to the said 24 head he had seen others with said burned brand on the owner’s ranch. That they did not rope any of these additional cattle, but did some of the 24 head, and he was asked when he saw them on appellant’s ranch, and he replied that he did not remember the exact date. The court refused this bill in effect by stating that appellant made no objection.

By his next bill, he shows that the district attorney, in arguing before the judge the admissibility of this testimony, to which he objected, in effect stated that it was material and had a good deal to do with the case, and that by the questions he was seeking to fix the date. The court, in passing upon this bill, states that appellant made the objections to the question and statement of the district attorney, but that no request was made to instruct the jury not to consider said statement by the district attorney.

By the next bill he shows that the answers of the witness to the district attorney’s further questions developed the fact that it was about 15 or 20 days after appellant was arrested on June 1st in this case before he saw these other cattle inquired about. Thereupon, whether of his own motion or upon that of the district attorney is not disclosed, but at any rate, the court withdrew all that testimony, and instructed the jury not to consider it for any purpose whatever.

In order that the question may be, better understood, we briefly state what the evidence disclosed along this line. On or about January 20, 1915, appellant had 87 head of cattle penned near his house on his ranch. The cattle consisted of one young calf, another a little older, other cattle one and two years old, and then some cows still older, and three bulls. That these cattle belonged to the alleged owner Jones and were stolen from him. That. on January 20th appellant sold and delivered said 37 head to Mr. Lane. The cattle, except the two calves, were originally branded in Jones’ brand and marked in his mark. His brand was YI. That just recently before appellant sold and delivered them to Lane, the brand had been changed by burning Jones’ brand into that of appellant. The burning consisted in attempting to run a bar from the right-hand top of the V to the bottom of the I, thus mating a W and a J lying flat above it; this JW brand being appellant’s. That when these burned brands were discovered some time after the said sale to Lane by appellant, Jones and some of his employés on his ranch-from which the cattle had been stolen, with others, went to Lane’s and clearly identified 24 of the 37 head at that time as the stolen property of Jones, and thereupon the 24 head were delivered to him, and he had them driven to his ranch home whence they had been, stolen. Later, shortly after-wards, Jones procured from Lane eight additional head of these 37 head of stolen cattle. It was cattle in addition to these 37 head that the district attorney was by inquiries of this witness attempting to show were on appellant’s ranch with Jones’ brand burned and changed into that of appellant. Even though, by further probing, it was ascertained that it was a few months after the sale of the 37 head to Lane that the witness saw these additional cattle on appellant’s ranch with the brands so changed, we are inclined to believe that such testimony was admissible; that the time he saw them there was not too remote to permit its proper admission.

As stated, the testimony in this case was wholly circumstantial. Appellant’s defense was that the cattle he sold Lane were cattle that he and his father had raised and at no time were Jones’ cattle, and that those delivered to Lane had not had the brands burned on them as established by the state’s testimony. The authorities are to the effect that when it is sought to show guilt of an accused by circumstantial evidence, if the proof of another offense connects, or tends to connect, him with the alleged offense for which he is being tried, or when it tends to defeat his defensive theory, such evidence is admissible, although it tends to prove another distinct crime. Section 2347, 2 Branch’s An. R. O. But whether the evidence in this instance was admissible or not, when it developed that it was some months after said sale by appellant to Lane, of said 37 head of cattle, the court excluded it and peremptorily charged the jury, as stated, not to consider it for any purpose. This cured any error, if there was error, in its admission. Kinney Miller v. State, 185 S. W. 29, and authorities there cited.

Appellant’s fifth bill is not approved by the judge — hence cannot be considered; but even if .it had been approved, it would present no error, for it and the next bill show that he complained because the court, after laying the proper predicate as to one of appellant’s witnesses, permitted the state to impeach him by proving statements by him the reverse of what he testified on this trial. This is always permissible. The court in his charge explained to the jury that it was admitted solely for the purpose of impeaching, if it did, the defendant’s witness, and that they could consider it for no other purpose whatever.

The judgment is affirmed. 
      <&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     