
    GORRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    March 11, 1914.)
    1. Ckiminal Law (§ 1090) — Appeal—Denial op Continuance — Bill op Exceptions.
    Where an order overruling a motion for continuance is not presented by a bill of exceptions, it cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, .2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Criminal Law (§§ 949, 956) — New Trial —Grounds—Misconduct op Jury — Proop.
    A new trial for alleged misconduct of the jury in commenting on defendant’s failure to testify was properly denied, where the motion was not sworn to, and was not supported by affidavit or other evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. «¡§ 2337. 2339-2344, 2373-2391; Dec. Dig. §§ 949, 956.]
    3. Criminal Law (§ 655) — Trial—Conduct op Judge.
    That the judge during the trial vacated the bench, walked down to the state’s attorneys, and talked with them in the presence of the jury, but not in their hearing, was not error.
    [Ed. Note. — For other cases, see Criminal »Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    4. Larceny (§ 50) — Stolen Property — Bringing into State — Evidence.
    In a prosecution for bringing stolen cattle into the state from Oklahoma and selling the same to L. for beef, it appearing that L. gave defendant a check for $50 with knowledge that the cattle had been stolen, evidence of the transaction between defendant and witness, a banker, who cashed the check, concerning what occurred at the time was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 142; Dec. Dig. § 50.]
    5. Larceny (§ 70) — Bringing Stolen Property into State.
    In a prosecution for bringing stolen cattle from Oklahoma into Texas and selling them, the court properly charged the jury as to the law of theft of both Oklahoma and Texas.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 182, 183, 185, 186; Dec. Dig. § 70.]
    6. Larceny (§ 40) — Indictment—Evidence-Variance.
    Where an indictment for bringing stolen cattle into the state and selling them properly alleged the theft of one head of cattle, and the court’s charge followed the indictment, it was not material that the evidence showed the theft of more than one head.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 102-126. 160; Dec. Dig. § 40.]
    7. Criminal Law (§ 792) — Instructions — Accomplice.
    In a prosecution for bringing stolen cattle into the state, an instruction that, if the jury believed that L. committed the offense alleged, if it was committed, then, before they could convict defendant, they must believe from the evidence beyond a reasonable doubt that he
    was present at the time and knew of the unlawful acts and intentions of L., and, with such knowledge, aided him therein, and, unless they so believed, they should acquit accused, was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1S18-1820; Dec. Dig, § 792.] . ,
    8. Criminal Law (§ 829) — Trial—Request to Charge.
    The court may properly refuse requests to charge which have been covered in the court’s main charge. :
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    9. Criminal Law (§ 1122) — Appeal — Instructions — Record.
    Refusal to give a request to charge limiting the jury’s consideration of certain evidence cannot be reviewed, where the evidence sought to be limited is not given in the charge, nor in connection therewith, and the court could not tell from the record what was intended thereby.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    Appeal from District Court, Grayson County; John C. Wall, Special Judge.
    Dot Gorrell was convicted of bringing stolen property into the state, and he appeals.
    Affirmed.
    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
    
   PRENDERGAST, P. J.

The appellant was indicted, tried, and convicted under article 1431, P. C., for bringing into this state property stolen in Oklahoma, and his punishment fixed at two years in the penitentiary. The indictment follows the statute, is in accordance therewith, and is also in accordance with the form laid down by Judge White in section 1660 of his Ann. P. C., and is sufficient.

One Joe Lynch was a principal with appellant in the commission of the offense. He testified fully in the case, and clearly made out the case against appellant. The court charged that he whs an accomplice, and that he had to be corroborated as required by the statute. The testimony, both positive and circumstantial, was amply sufficient to corroborate Lynch. The court did not err in refusing appellant's peremptory charge to find him not guilty.

The testimony as a whole, both positive and circumstantial, was amply sufficient to show that appellant and said Lynch, acting together, stole several head of cattle from the owner, Mr. Henry, in Oklahoma, near the Red river, late in the evening or early part of the night of April 29, 1913, and drove several head of said stolen cattle from Oklahoma to near Denison, in Grayson county, Tex., and that they sold them there to a man by the name of Lamb, who slaughtered them, and that they each got part of the pay therefor. Among these cattle was one noted cow, thoroughly and completely identified, and her hide, after the slaughter, found at Lamb’s fully and completely identified as the hide of said cow and as the property of said Henry, stolen from him on the evening or night of April 29th.

Appellant, in his motion for new trial, by many grounds thereof, complains of the introduction of certain testimony over his objections, and to the court overruling his motion for a continuance. There is no bill in the record to the overruling of his motion for continuance and to many of his said complaints. None of these grounds can therefore be reviewed by this court. We will discuss such of his bills as are in the record and, made grounds of his motion for new trial.

Appellant, in one ground, complains that the jury, while deliberating on their verdict, commented upon and discussed his failure to testify. The motion is not- sworn to, nor is it in any other way supported by affidavit or any testimony, and, of course, the court did not err in not granting a new trial on that account Hicks v. State, 166 S. W. -, recently decided, but not yet reported.

When the time for the regular term of the court at which appellant was tried came on, Judge Pearson was absent and unable to serve on account of sickness. Thereupon the bar duly and regularly elected Judge John O. Wall special judge, who accepted, qualified and held that term of court, and was the presiding judge on the trial of appellant. By one bill appellant complains that, while the trial was proceeding and one of the witnesses was on the stand, Judge Wall vacated the bench and walked down to where the state’s attorneys were engaged in the trial, and, in the presence of jury, for several minutes, talked to the state’s counsel. Appellant objected to this. The court, in approving the bill, qualified it by stating: “That nothing spoken of between the court and attorney for the state was so spoken that he could possibly have been heard by the jury; that it in no way or manner related to how state’s attorney should frame any question to make evidence admissible, and was not intended, in any manner, to impress the jury, unless the jury could go to such a conclusion merely from the fact that the court had a conversation with attorneys for the state.” This showed no error whatever.

By another bill appellant shows that the state proved without objection that after the one head of cattle was stolen from said Henry in Oklahoma by appellant and said Lynch, that said Lynch testified that he and appellant were acting/together and stole the said one head and 11 others in Oklahoma, and on the same night brought them into Grayson, county, Tex., and delivered them to the slaughterhouse of Lamb near Denison, and each received in part payment of said cattle a check for $50 from said Lamb, said Lamb knowing that said cattle had been stolen ; that, while Mr. Wheeler was being examined by the state, he testified, without any objection by appellant, that he had heard of said Henry having cattle stolen from him at the location from which these were stolen, and that he saw defendant at the witness’ bank in Kingston, Okl., and had a transaction with him, but did not remember whether it was before or after he heard of the said theft; that it might have been a few days before or a few days afterwards; that the cashier of the bank went away on the morning of April 30th, and returned the 8th or 9th of May, 1913, and that it was during his absence that the transaction occurred; that he had no independent recollection of the date of the check, but that the record of the bank showed that it was dated April 20, 1913. Thereupon the state asked him to tell what the transaction between him and appellant was. To which appellant excepted, because it was irrelevant, immaterial, and hearsay, and that the instrument about which he was asked was dated April 20th, when the transaction between the defendant and Lamb, shown by the testimony, occurred on the 30th of April; that the instrument itself would be the best evidence of the contents, and the testimony was highly prejudicial to him. The court overruled his objections, and the witness testified that he cashed a check payable to said Gorrell, drawn on the First State Bank of Denison; that he paid the money to defendant; that he did not have the check in his possession; it was sent to the National Bank of Denison, and the check was for $50 and signed by Lamb. The state was not attempting to prove the contents of the check. It had already been proven by other testimony not objected to by appellant. Of course, the transaction between the banker and appellant and the time it occurred and the fact that the banker paid appellant the $50 on the check, and, in fact, the whole transaction between them was clearly admissible.

The state proved, without contradiction, what the laws of the state of Oklahoma were, both as to theft generally and theft of cattle. The appellant admitted that the statute of Oklahoma on theft generally was as proven up and introduced by the state, and that the statute of the theft of cattle proven up and introduced was the identical law in force, except that the minimum punishment of two years’ confinement in the penitentiary had been changed, so that the law then was one year’s, instead of two, confinement in the penitentiary. The court did not err in telling the jury in his charge what this law of Oklahoma was, nor did the court err in telling the jury what was theft under the laws of Texas. It was necessary for him to do so in order to charge the law to the jury.

In submitting the case to the jury for a finding, the court properly required the jury to believe beyond a reasonable doubt every essential fact that was necessary to be found in order to show the guilt of the appellant before they could convict him, and, in case they did so find all such facts against him beyond a reasonable doubt, then to find Mm guilty and assess the proper punishment therefor. It was of course, necessary for the court to do this to properly submit the case to the jury for a finding.

Though the indictment properly alleged the theft of one head of cattle and the charge of the court followed the indictment, it would make no difference that the evidence not only ■showed the theft of one head, but more than •one head. This would be no variance.

In charging the law of an accomplice and applying it to the facts of tMs case, the court literally followed the statute, and, of course, it was sufficient. The charge of the court ■fully embraced everything in substance, if not literally, in the charge requested by appellant, and there was no error in the court’s refusing his special charge on the subject.

The court did not err in charging, but correctly charged, in effect, that if they believed said Lynch committed the offense alleged, if any was committed, that, before they could convict appellant, they must believe from the evidence, beyond a reasonable doubt, that he was present at the time said acts were committed, and knew of said unlawful acts and intention of Lynch, and, with such knowledge, aided him in such matters, and, unless they so believed, to acqMt appellant. Said charge was a correct enunciation of the law applicable to this case.

The court gave an apt, full, and correct charge submitting every issue that was raised properly to the jury for a finding, and none of appellant’s objections thereto are well taken.

Wherever necessary or proper to be given,, the court in the main charge covered every point upon which appellant requested speciál charges. The indictment, having charged the theft of one head of cattle, it was neither necessary nor proper for the court to require the state to elect what particular one head of cattle was meant when the proof showed that not only one, but more than one were stolen and brought into Grayson county. This would in no way be a variance’, nor require an election.

When the state introduced said witness Lynch, the appellant sought to attack ■him by his own testimony, and other testimony also that he was a morphine fiend and incompetent as a witness. In addition to his testimony on tMs subject, Lynch testified fully about the whole case. Appellant himself had Lynch to give a good deal of this testimony. Much of his material testimony was of things not occurring in the immediate presence of appellant. The appellant requested and the court refused to give this charge: “Certain testimony has been admitted in evidence before you in reference to statements made by the witness Joe Lynch in the absence of the defendant Dot Gorrell. You are instructed that you can only consider said testimony in passing upon the mental condition of the witness Joe Lynch, and you must not consider said statements for any other purposes.” What this testimony is that this charge had reference to is in no way given in the charge, nor in connection therewith, nor can we tell from the record what was intended thereby. As the record presents the matter, no error is shown in the court’s refusal to give tMs charge.

The record showing no reversible error, the judgment will be affirmed.  