
    CHANCE v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1911.
    On Motion for Rehearing, Dec. 6, 1911.)
    1. Criminal Law (§ 1056) — Appeal—Reservation of Ground.
    Under a statute providing that, though the record of a criminal appeal shows error, the cause shall not be reversed where there was no exception preserved thereto “at the time of trial or in the motion for a new trial,” a failure to charge on certain theories cannot be reviewed for error where exceptions were not so taken.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2668, 2670; Dec. Dig. § 1056.]
    2. Constitutional Law (§ 70) — Judicial Functions — Policy of Statutes.
    The wisdom of legislative enactments is of no concern to the courts. 1
    
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 131; Dec. Dig. § 70.]
    3. Witnesses (§ 350) — Evidence—Credibility of Accused — Other Indictments.
    Upon a criminal prosecution, the defendant may be questioned as to indictments against him for the same kind of offense by grand juries of other counties to affect his credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    4. Larceny (§ 53) — Evidence — Other Offenses — Admissibility.
    Where, m a prosecution for theft of cattle, the defendant claims to have purchased the property in good faith, and after the time of the alleged theft exhibited to the district attorney a bill of sale purporting to transfer title to the person from whom defendant claimed to have purchased, evidence to show that the seller in such bill of sale did not execute it, but that it was made by defendant and another, who remarked at the time of its making that it would clear defendant and put the person named therein as seller in the penitentiary, is admissible as bearing on the claim of purchase in good faith.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 148; Dec. Dig. fj 53.*]
    5. Criminal Law (§ 1091) — Appeal—Exceptions— Sufficiency.
    A bill of exceptions must be complete in itself, and a court will not look to other parts of the record in order to determine whether testimony is admissible, so that, where testimony is introduced which would not be improper if followed by certain other testimony, a bill of exceptions, which fails to show whether the state’s attorney followed up the matter, is incomplete, and the court will not review the exception thereto.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803-2833, 2931-2935; Dec. Dig. § 1091.]
    6. Criminal Law (§ 1091) — Appeal and Error — Exceptions—Sufficiency.
    Where testimony introduced might be admissible for a certain purpose, a bill of exceptions which fails to negative the fact that it was admissible for that purpose, is incomplete and cannot be considered.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2931-2935; Dec. Dig. 1091.]
    7. Cbiminal Law (§ 1091)—Appeal—Excep-tions— Sufficiency. ■
    Where a bill of exceptions on appeal from a conviction for crime merely presents the ruling of the court on the admissibility of certain evidence which defendant contends is error and does not show whether the testimony was actually introduced, or, if it was, what the witness said, there is nothing presented for review.
    [Ed. Note.—For other • cases, see Criminal Law, Cent. Dig. §§ 2931-2935; Dee. Dig. § 1091.)
    On Motion for Rehearing.
    8. Larceny (§ 53)—Evidence—Admissibil-ity.
    In a prosecution for theft of a beef, testimony of a person who saw the property alleged to have been stolen in the pen of the defendant and told another person about it on a certain day, and of such other person that the first witness did so tell him, is admissible to show the time the beef was in the pen, and thereby disprove testimony of defendant to the effect that on the day before the witness saw the beef he purchased it from a traveler in another county.
    [Ed. Note.—For other cases, see Larceny, Cent. Dig. § 118; Dec. Dig. § 53.]
    Appeal from District Court, Hardin. County; L. B. Hightower, Judge.
    Sam Chance was convicted of theft, and appeals.
    Affirmed.
    Blain & Howth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. Sc Am. Dig. Key No. Series & Rep’r indexes
    
    
      
       For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with the theft of cattle, and when tried he was convicted and sentenced to two years in the penitentiary.

Appellant’s counsel has filed an able brief in this court, and in the brief complains that “the court erred in failing to charge on circumstantial evidence, and that the court erred in failing to charge on recent possession of stolen property and reasonable explanation at the time.” By reference to the motion for a new trial, we find no such errors assigned in the motion for a new trial. Appellant cites us to a number of cases, among them Taylor v. State, 27 Tex. App. 465, 11 S. W. 462, holding that, if the evidence is such as to call for a charge on these theories, it is error for the court to fail to so charge the jury. Without detailing the evidence, and discussing whether such charges were called for by the evidence, since the court rendered the opinion in the Taylor Oase and other cases cited by appellant, the Legislature in its wisdom, in 1897 (Laws 1897, c. 21), provided by statute that: “Whenever it appears by the record in any criminal action, upon appeal by defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed unless the error appearing from the record was excepted to at the time of the trial or in the motion for a new trial.” The matters above complained about were neither excepted to at the trial, nor in the motion for a new trial, and this court is precluded by this statute from considering such matters on appeal.

As to the wisdom of this law it is not for us to discuss, but we must follow it as written by the Legislature. See the case of Ryan v. State, 142 S. W. 878, decided to-day, and authorities there cited.

There was no error in permitting the state to ask defendant if he had been indicted in other cases of theft by the grand juries of Hardin and Jefferson counties, and in requiring him to answer. This evidence was admissible for the purpose of affecting his credibility as a witness, and the court properly limited it in his charge.

It appears that, subsequent to the time defendant is alleged to have stolen the animal, he exhibited to the district attorney a bill of sale to the animal in question which purported to be from Joe MeCluskey to one Fabriquez, and from whom he claimed to have purchased the animal. There was no error in permitting the state to show that MeCluskey had never executed such bill of sale, and to introduce evidence tending to show that defendant, and one Robert Webb had written the bill of sale in question, and at the time of its execution remarked that “it (the bill of sale) would clear defendant and put MeCluskey in the penitentiary.” This all would have a bearing on his claim of purchase in good faith from Fabriquez.

Mr. Jack Townsend had testified that he saw the animal alleged to have been stolen in the lot of defendant, when, among other things, the following proceedings were had: “Q. I will ask you to state whether or not you informed him about this particular beef —did you inform him or not? Defendant: I object to that testimony unless they show the defendant was present. State: I want to show at this particular time he showed Mr. Owens that he informed him about this brindle beef in Sam Chance’s pen. Court: What is the purpose? State: The purpose is to show Mr. Owens that he knew where this beef was on the day before that. Court: It is hearsay. State: I understand. You do not catch the intent; why I want to introduce the proof. All I want to know is the day in which Mr. Owens—in other words, the very time this beef was seen in the pen. It was seen there that day. Court : You want to identify the time? State: Yes, sir. Court: Go ahead. Defendant: We object to that as being hearsay; the defendant was not shown to be present. Court: Of course, he has got to follow it up; it is simply upon the question of identification of time. State: That is the only reason I offer it. (Defendant excepts to the ruling of the court.)”

A bill of exceptions must be complete in itself, and this court does not look to other parts of the record in order to determine whether testimony is admissible. From this bill we cannot tell whether the state’s attorney followed the matter up or not, and if he did do so, if the testimony of Mr. Owens was such as to authorize this statement to be introduced for the purpose of fixing the time, certainly after the witness Townsend had testified he recognized the animal in defendant’s lot as the animal of the prosecuting witness, to permit him to state that he had told another about seeing the animal would add no force to his testimony, and would not be reversible error. In addition thereto, as stated by the court, under certain emergencies, the testimony might he admissible for the purpose stated, and, as this is not negatived in the bill of exceptions, it is incomplete and cannot be considered. In the case of Bailey v. State, 50 Tex. Cr. R. 398, 97 S. W. 694, this court held: “There are no separate bills of exception to the introduction of testimony. However, there are some exceptions taken in connection with the statement of facts. As usual with this character of exceptions, it is difficult to determine whether they are taken in such manner as to require a review. * * * We again repeat, what we have heretofore said, that we will not wander through the entire record to find appellant’s bills of exception.” See, also, Jones v. State, 54 Tex. Cr. R. 507, 113 S. W. 761.

In another bill the following proceedings are complained of: State’s counsel asked the witness Owens: “Q. I will ask you, Mr. Owens, if you ever was informed by any one about this beef being penned in Sam Chance’s pen? A. Yes, sir; I was. Defendant: We object to that as being wholly immaterial and hearsay, leading and suggestive. Court: What is the purpose of that? State: I want to follow it up and show it was Jack Townsend told him. Court: I understand. Is it for the purpose of identifying the time Jack Townsend saw it? State: Yes, sir. Court: You can show it, but otherwise it is not admissible. You can show the time that Jack Townsend saw it. Defendant excepts to the ruling of the court.”

This bill does not show that the witness testified that Jack Townsend told him anything, nor, if he did do so, what it was he told him. We are not permitted to look to other parts of the record to see what, if anything, the witness testified. The bill being in this condition, nothing is presented for us to review.

There was no error in failing to give the special charges requested by defendant. The court charged the jury: “You are further charged that the fraudulent intent in the taking of the property is the very gist of the crime of theft, and, without such intent exists in the mind of the person taking at the very time of the original taking of the property, there can be no theft, no matter if such intent was afterward conceived. And you are further charged that if you are satisfied from the evidence beyond a reasonable doubt that the head of cattle in question (that is, the red brindled steer branded ‘B’), the hide of which was found in defendant’s possession, was the property of the said Bill Parker, yet if you find and believe from the evidence that the defendant bought the head of cattle in question (that is, the red brindled steer branded ‘B’) from a man who gave his name as Jack Fabriquez or Fabricus, then you will acquit the defendant, or if you entertain a reasonable doubt as to whether or not the defendant bought the head of cattle in question (that is, the red brindled steer branded ‘B’) from a man giving his name, as Jack Fabriquez or Fabricus, you will solve the doubt in favor of defendant and acquit him.”

This covered all that was in the special charges requested it was proper for the court to give in charge. As before stated, the evidence in regard to the bill of sale was admissible. To have charged thereon would have been upon the weight to be given the testimony.

Affirmed.

On Motion for Rehearing.

Appellant has filed a motion for a rehearing herein, in which he earnestly insists that the court erred in admitting the testimony of Jack Townsend when he permitted Townsend to testify that on the day he saw the beef in defendant’s pen he told Mr. Owens about it, which was done, as he said, for the purpose of fixing the time, and also erred in permitting Mr. Owens to testify that Townsend had told him. As said in the original opinion, neither of these bills are in such condition as would properly present the questions to this court for review. However, as in the original opinion, we quoted from an opinion of Judge Henderson •approvingly, wherein he held: “We again repeat what we have heretofore said, that we will not wander through the entire record to find appellant’s bills of exceptions.” Appellant in his motion says: “The brief filed in this case cites the court to the pages of record containing the objectionable testimony.” This is a trouble we often find in cases on appeal, the brief will ably present a question, yet, when we turn to the bill of exceptions in the record, it is so incomplete as to present no question for review. As shown in the original opinion, the bill of exceptions does not show that Townsend told Owens anything. Nor does the other bill show that Owens testified Townsend told him anything. Appellant insists we should go to the statement of facts, and we would see they did so testify. This is what this court has held it will not do, in an unbroken line of decisions; but a bill of exceptions in and of itself must present tlie question, without reference to what the statement of facts will or will not show.

But if the bills were complete under this record the testimony would be admissible for the very purpose suggested by the court, as showing the time. Appellant and his witnesses had testified that, the day before Townsend saw the beef in his pen, he had bought the animal from a traveler in Jefferson county. To refute this testimony, in rebuttal, the state proved that the day before Hr. Owens had seen this animal on his accustomed range in Hardin county, Tex., about 1% miles from defendant’s residence. Mr. Townsend testified that the day he saw the animal in defendant’s pen he told Owens. Owens testified that the day before he saw the animal at a different place and in a diferent county where defendant claimed to have bought the animal. If we go to the statement of facts for one purpose, then we go for all purposes,-and, when we do so, we find the testimony not only admissible, but very material in going to show that appellant’s explanation of his .possession was not probably true. Either he was mistaken about buying the animal in Jefferson county the day before, or Mr. Owens was mistaken about seeing it in Hardin county about one mile and a half from defendant’s residence, and this was a question for the jury to determine. In rebuttal the state had the right to prove this explanation false, if it could do so, and when we consider the record there was no error in admitting the testimony.

Motion for rehearing overruled.  