
    ASHLEY v. STATE.
    (No. 10999.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    1. Criminal law <&wkey;>508(l) — In prosecution for larceny of hogs, accomplice’s testimony as to disposition of stolen meat held not error.
    In prosecution for larceny of hogs, bill of exception complaining of admission of testimony of confessed accomplice concerning eating and disposition of stolen meat held not to disclose error, in view of court’s qualification to effect that testimony was admitted to show hiding and concealing of meat.
    2. Criminal law >&wkey; 1092(11) — Statement indorsed on bill, of exception following judge’s signature, to effect that appellant excepted to court’s qualification of bill, held not part of bill.
    Statement indorsed on bill of exception showing judge’s signature, to effect that appellant objected and excepted to the court’s qualification of such bill, signed by appellant’s counsel, held not properly part of the bill.
    3. Criminal law <&wkey;364(4) — In prosecution for larceny of hogs, testimony that defendant denied knowledge of meat found under floor, and later said wife’s father gave her hog, held admissible as part of res gestee of transaction.
    In prosecution for larceny of hogs, deputy sheriff’s testimony that defendant had first denied knowledge of meat found concealed under floor of his residence, and later said that his wife’s father had given her a hog, held admissible as part of res gestae of the transaction.
    4. Larceny <&wkey;45 — In prosecution for larceny of hogs, prosecuting witness’ testimony as to earmarks .or absence thereof on butchered hogs recovered held admissible.
    In pros'ecution for larceny of hogs, admission of prosecuting witness’ testimony that he was present when officers searched defendant’s premises and premises of others implicated, and that only one of the butchered hogs recovered bore his earmark, the heads or ears having been cut off and carried away from the remaining bodies, held not irrelevant or inadmissible.
    5. Larceny <&wkey;5l(l) — In larceny case, testimony that person implicated was seen carrying sack from his house as officers were searching held .admissible to show hiding of fruits of crime.
    In prosecution for larceny of hogs, admission of testimony that witness saw one of persons involved come out of his house, carrying a “sack full- of something,’’ when officers were searching for stolen meat, held admissible as tending to show hiding and concealing of the fruits of crime.
    6. Criminal law <&wkey;4 170 f/á (f) — Permitting state to impeach own witness by showing prej-‘ udicial to defendant held not reversible er- ' ror.
    In prosecution for larceny of hogs, where particular witness had testified that he saw person implicated come out of his house which officers were searching carrying a sack, it was not error to permit state to impeach such witness to extent of showing that he had previously stated that such person was running when he came out of his house.
    7. Criminal law <&wkey;687(I) — Permitting state to introduce additional evidence after testimony was closed held n.ot error.
    In prosecution for larceny, permitting state, after testimony had been closed but before charge to jury, to introduce additional evidence held not error; defendant being given ample opportunity to meet such evidence.
    8. Criminal law &wkey;>686(l), 1153(1) — Admitting additional evidence after closing testimony is discretionary and reviewable only for abuse.
    Matter of admitting additional evidence after testimony is closed is within discretion of trial court, whose action will not be disturbed except for abuse of discretion.
    9. Criminal law <&wkey;537 — Admission of statements made by defendant under arrest, disclosing whereabouts of stolen hogs, held not error where statements led to discovery of hogs (Code Cr. Pr.oo. 1925, art. 727).
    In prosecution for larceny of hogs, admission of sheriff’s testimony that defendant under arrest made voluntary statement, disclosing where some of the stolen hogs would be found, held not error, under Code Cr. Proc. 1925, art. 727, in view of court’s qualification of bill of exception to effect that sheriff further testified that as result of such information he found three stolpn hogs.
    10. Larceny &wkey;>75(l) — In prosecution for larceny, failure to instruct acquittal if defendant was not connected with original taking held error.
    In prosecution for larceny of hogs, where one of persons primarily involved testified that he and another were in possession of the hogs when defendant first became connected with the transaction, refusal of court to charge that if defendant was not connected with the original taking he could not be convicted held reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Lawrence Ashley was convicted of larceny of hogs, and he appeals.
    Reversed and remanded.
    Rowe & Rowe, of Livingston, for appellant. Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted of hog theft, and his punishment assessed at 2 years in the penitentiary.

It was the contention of the state that Bud Gny, Zeke Goodall, Jesse Beece, Bichard Bryant, and the appellant stole 4 or 5 hogs from Martin Branch, the prosecuting witness, on the date alleged in the indictment. It was upon the testimony of Bichard Bryant, a confessed accomplice, that the state largely relied for a conviction.

The appellant did not testify, hut defended upon the ground that he was not connected in any manner with the alleged original taking of the hogs in question, that Bud Guy already had the hogs in his possession when he, appellant, became connected with the transaction, and that, because of statements made at said time, he believed that the hogs belonged to Bud Guy.

The record discloses that the appellant was separately indicted and tried for this alleged offense.

There are 7 bills of exception in the record.

Bill Nó. 1 complains of the action of the court in permitting the state’s witness Biehard Bryant to testify about eating and disposing of some of the stolen meat, and to testify concerning a conversation had by him with another codefendant in the absence of the appellant. The appellant objected to this testimony upon the ground that it was irrelevant and immaterial, that it did not connect him with the fraudulent taking of the hogs, and that it was hearsay, and if any conspiracy ever existed it had ended. The court, in qualifying this bill, states that it was the contention of the state that all of the parties were acting together and conspiring to steal said hogs, and that the testimony complained of related to the hiding and concealing of the meat. This bill, as qualified, shows no error.

Following the signature of the trial judge to this bill of exception is a statement, signed by appellant’s counsel, to the effect that the appellant “objected and excepted” to the court’s qualification. Since this objection and exception follows the signature of the trial judge and is signed by appellant’s attorneys only, it cannot be considered as a part of the bill. The record contains other bills of exception in the same condition.

In bill No. 2 complaint is made to the action of the court in permitting Deputy Sheriff Gore to testify that, upon obtaining a search warrant and searching appellant’s house, the officers found meat concealed under the floor of his residence, and that the appellant at first denied any knowledge concerning the meat, hut later stated that his wife’s father had given to her the hog from which the meat was made.' The appellant contends that the admission of this testimony was error, since he was practically under arrest at the time, and had not been warned, and the statements were not reduced to writing. We are not in accord with this contention, and are of the opinion that this testimony was admissible as a part of the res gestae of that transaction and as the appellant’s explanation for having in his possession recently stolen property, when his ownership and possession of same was first- questioned.

Bill of exception No. 3 complains of the action of the court in permitting the prosecuting witness to testify that he was present when the officers searched appellant’s premises and the premises of the other parties implicated in the alleged theft, and that only one of the butchered hogs recovered bore his mark on its ears, the heads or ears having been cut or carried away from the remaining bodies of said hogs. The appellant contends that this evidence was irrelevant and prejudicial because the butchered hogs in question were not found in his possession, but in the possession of one of the other parties charged with the offense. This bill presents no error.

Bill No. 4 complains of the action of the court in permitting the state’s witness Jim Bogany to testify that he saw Jesse Beece come out of his house carrying a “sack full of something,” when the officers were down there searching for stolen meat. The appellant contends that this testimony was immaterial and prejudicial, and that he was pot bound by the acts of Jesse Beece. This bill is qualified by the trial court to the effect that the state contended that all of the parties were acting together in the theft of the hogs, and this evidence tended to show a hiding and concealing of the fruits of the crime. This bill, as qualified, shows no error. Branch’s Ann. P. 0. § 695, states:

“Even after the conspiracy has ended, as an exception to the general rule it may be shown that a eoconspirator or codefendant was found in possession of fruits of the crime,” etc. (citing Pierson v. State, 18 Tex. App. 561, Bowen v. State, 60 Tex. Cr. R. 604, 133 S. W. 256, and many other authorities).

Bill 5 complains of the action of the court in permitting the state to impeach a statement made on the stand by the witness Bogany by showing that he had previously told the state’s attorney that Jesse Beece was running when he came out of his house, carrying the sack mentioned in bill No. 4. Appellant contends that this was an attempt by the state to impeach its own witness on an immaterial issue, and that it was hearsay and prejudicial. The court qualifies this bill by stating that the testimony complained of was limited to impeachment purposes. This bill is insufficient to show upon its face any error, in that it fails to state sufficient facts to show the alleged error complained of, and in the absence of such a showing this court will have to presume that the trial court ruled correctly in admitting this testimony. Rutherford v. State, 102 Tex. Cr. R. 310, 277 S. W. 669; Raglin v. State, 104 Tex. Cr. R. 356, 284 S. W. 548.

Bill No. 6 complains of the action of the court in permitting the state, after the testimony had been closed but before the court’s charge had been read to the jury, to introduce additional evidence by the witness Holliday. The court qualifies this bill by stating that he offered appellant’s counsel ample opportunity to question this witness on all the points inquired about by counsel for the state, and that none of the witnesses had been excused and all were present at said time. This bill presents no error. Such matters are left to the discretion of the trial court, and where there is no abuse of such discretion shown, this court is unauthorized to interfere with the ruling of the trial court thereon.

Bill No. 7 complains of the action of the court in permitting Sheriff Holliday to testify that while the appellant was under arrest he made a voluntary statement to him advising him where he would find some of the hogs that had been stolen. Appellant’s counsel objected to the admission of this testimony upon the ground that appellant was under arrest when he made the statement and had not been properly warned. The court, in qualifying this bill, states that the sheriff further testified that as a result of the information given him by appellant he found 3 of the stolen hogs. This testimony was clearly admissible under article 727, 0. O. P., which exempts from the statutory formalities of warning, reduction to writing, etc., such confessions as lead to the discovery of fruits of the crime. For collation of authorities, see Vernon’s C. C. P. art. 727, note 12. Also see Snow v. State (Tex. Cr. App.) 291 S. W. 558.

The appellant complains of the failure of the court to charge the jury to the effect that if he was not connected with the original taking of the hogs in question, to acquit him, and of the refusal of the court to give appellant’s special charges 2 and 4 on this issue. The appellant properly excepted to the court’s general charge for his failure to give an instruction on this issue to the jury, and also excepted to the refusal of the court to give the said requested special charges thereon. This issue was clearly raised by the testimony of the state’s witness Richard Bryant, who testified that he and Bud Guy were in possession of the hogs when the appellant first became connected with the transaction, and same should have been submitted to the jury for their determination. The appellant having been charged with the theft of the hogs, he could not be convicted if the testimony showed that his associates had stolen them before he became connected with the transaction, and if the testimony further shqwed that he was only guilty, if at all, of receiving stolen property. See Lee v. State, 57 Tex. Cr. R. 177, 122 S. W. 389; Looney v. State, 80 Tex. Cr. R. 317, 189 S. W. 954; Coleman v. State, 82 Tex. Cr. R. 332, 199 S. W 473.

For the error above discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURJAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court' of Criminal Appeals and approved by the court. 
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