
    SIMONDS v. STATE.
    (No. 3493.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Criminal Law ©=593 — Review—Continuance.
    A motion for continuance on the ground that defendant’s principal attorney was unable to attend court, that he was most familiar with the witnesses, facts, etc., and that his presence was indispensable, was addressed to the court’s sound discretion; and, where defendant had two attorneys in attendance, there was no abuse of discretion in denying the motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1320; Dec. Dig. ©=593.]
    2. Criminal Law ©=132 — Review — Time for Application.
    Under Code Cr. Proc. 1911, art. 617, providing that an application for a change of venue may be presented at any time before either party announces ready for trial, defendant, who had not announced ready for trial, and whose motion for a continuance on the ground of the absence of his principal counsel, who was most familiar with the facts, witnesses, etc., had been overruled, was not thereby deprived of the right to thereafter file his application for a change of venue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 249; Dec. Dig. ©=132.]
    3. Criminal Law ©=134 — Venue — Verificoation of Affidavit.
    An application for change of venue, drawn in accordance with the Code provisions, and to which no controverting affidavit was filed, on objection that it was sworn to before one of defendant’s attorneys, should have been permitted to be sworn to before the clerk.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 243, 251, 252; Dec. Dig. ©= 134.]
    4. Criminal Law ©=137 — Right — Change op Venue.
    On such application, defendant was entitled to a change of venue as a matter of right.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 253; Dec. Dig. ©=137.]
    5. Larceny ©=45 — Evidence — Identity op Property.
    In a prosecution for the theft of goats, where the owner had testified as to brand of the goats he had lost, and as to the brand of those found evidence as to the condition of the brand and to facts tending to show that the original brand had been run over and the marks changed was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 111; Dec. Dig. ©=45.]
    6. Criminal Law ©=404, 651 — Evidence — View op Goats.
    In such prosecution, a view of the goats by the jury was not permissible, nor could they be introduced in evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 873, 891-893, 1457, 1516-1519; Dec. Dig. ©==>404, 651.]
    7.Criminal Law ©=475 — Opinion Evidence — Beand.
    In such prosecution, a witness,' who had been engaged in stock business for many years, who had before seen brands that had been burned, might testify that he had examined the brands on the goats in question as to the condition in which he found the brands, and that an old brand had the appearance of being burned over, and that the brand appeared to be fresh.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1063; Dee. Dig. ©=475.]
    8. Witnesses ©=48 — Competency — Person under Suspended Sentence.
    One adjudged guilty of theft at a prior term, of the court, whose sentence had been suspended, was a competent witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 109-115; Dec. Dig. ©=48J
    9. Witnesses ©=345 — Credibility—Indictment.
    In a prosecution for theft of goats, where defendant took the stand for himself, it was permissible to show that there was another indictment for felony pending against him, as affecting his credit as a witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1126-1128; Dec. Dig. ©=345.]
    10. Criminal Law ©=8S4 — Verdict — Suspension or Sentence.
    The only prerequisite to the right of the jury to suspend a sentence is that they must first find that defendant had not theretofore been convicted of a felony, and while evidence of his prior reputation is admissible on that issue, it is not a prerequisite to a right to suspend a sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526; Dec; Dig. ©= 884.]
    11. Larceny ©=51 — Evidence—Possession.
    In a prosecution for theft of goats, defendant’s possession of the pasture where it was claimed they were found was admissible as bearing on Ms possession of them.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 122; Dec. Dig. <&=o51.]
    Appeal from District Court, Edwards County ; R. H. Burney, Judge.
    Clarence Simonds was convicted of theft, and he appeals.
    Reversed and remanded.
    J. E. Friestman, of Rock Springs, George M. Thurmond, of Del Rio, and Martin & Martin, of Fredericksburg, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of theft of 74 head of goats, and his punishment assessed at two years’ confinement in the penitentiary, and from which judgment he prosecutes this appeal.

It is made to appear from the record that when the case was called for trial the state announced ready, when appellant filed a motion, asking for continuance of the cause on the ground that his principal attorney, Hon. Will A. Morriss, was unable to attend court, setting forth that Mr. Morriss was more familiar with the facts in issue and with the witnesses and parties, and specially alleging that by “reason of the conditions and the influences brought to bear against the defendant the presence of said Morriss becomes indispensable.” The sentence in quotation is copied by reason of the facts hereinafter recited. This motion was one addressed to the equitable power, and presented no strictly legal ground for a continuance, as appellant had two attorneys who were in attendance. And it being addressed to the sound discretion of the court, we would not feel authorized to hold that the court abused his discretion in overruling the motion for a continuance.

In the next bill it is shown that when the court overruled the application for a continuance, he ordered the clerk to call the jury in the box, when appellant stated to the court he was not ready to make an announcement in the case, but desired to present an application for a change of venue, which the court ordered the clerk to file. The application for the change of venue presented both statutory grounds, and further alleged that there were only about SO qualified jurors in the county; that, subtracting from this number the grand jurors, officers in the county, and witnesses in the case, there would be left not over 35 jurors not thus disqualified, and that 12 men out of that number could not be selected who would be unbiased, fair, and impartial. He further alleged that men had been employed to bring about a state of feeling adverse to appellant and create a sentiment and belief that he was guilty of the crime charged. This application was signed by appellant and supported by the affidavits of J. W. Smith and J. M. York. No controverting affidavit was filed by the state, but a motion was filed, asking the court to strike out the plea on two grounds: First, that it was filed too late, the state having announced ready for trial, and the defendant having filed a motion for a continuance; second, on the ground that the application for a change of venue was sworn to before one of counsel for appellant, who was a notary public. As soon as this demurrer or motion was filed, appellant asked leave of the court to amend the application for a change of venue by having it sworn to before the clerk of the court. This the court declined to permit him to do, and sustained the motion of the district attorney to strike the application for a change of venue from the record, and refused to hear evidence as to the truth or falsity of the allegations. In this we think the court erred. Article 617 of the Code of Criminal Procedure provides that an application may be presented at any time before either party announces ready for trial. Appellant not only had not announced ready for trial, but was contending that, before being compelled to announce, he had a right to present and have heard this application for a change of venue. It may be contended that it should have been presented before a motion for continuance was filed, but in the application for a continuance it is made to appear that he desired his principal attorney, Hon. Will A. Morriss, present before presenting the application for a change of venue, for in the application for a continuance he says:

“That by reason of the conditions and the influences brought to bear against this defendant in this case, the presence of said Morriss is indispensable.”

We do not think an effort to have the case postponed until he could get the attorney employed by him to conduct the examination of the witnesses on the hearing of application for a change of venue would or should deprive him of the right, when that application is overruled, to then file his application for a change of venue. It is drawn in accordance with the provisions of the Code, no controverting affidavit was filed, and when objection was made that it was sworn to before one of his attorneys, he asked leave and permission to have it sworn to before the clerk. This permission should have been granted; and, if no controverting affidavit was filed, he was entitled to have the venue changed as a matter of right. If a controverting affidavit had then been filed, he had a right to have heard the evidence on the motion. Ordinarily all one can ask a juror is whether or not he entertains any bias or prejudice against the defendant, but as the court had refused appellant permission to adduce testimony on his application for a change of venue, when he was questioning the jurors, he asked Mr. Bishop, among others, if he was well acquainted with the citizenship of the county, and when the juror answered that he was, appellant asked the juror if there was not in the county a general prejudice against him. The court, in approving the bill, states:

“That no limitation was placed on counsel in asking as to any prejudice of any juror, but only stopped an inquiry as to conditions generally over the county with reference to prejudice against the defendant.”

It is thus seen that every avenue was closed as to defendant showing that a condition existed which would authorize a change of venue, and this court is not enabled to x>ass ■on that question, but we can and do hold that the application for a change of venue was filed at a time authorized by law, and when appellant asked permission to amend it by having it sworn to before the clerk, permission should have been granted, and the evidence heard or the change of venue granted.

It is made to appear that Leo Kelly was permitted to testify that:

“The sheriff and the other member’s of the posse caught the goats, looked at their brands, and found some brands, showing where a new brand had been run over an old brand, and the marks showing there had been a change on-marks; that the sheriff and his party found brands on the left jaw of the goats to be rather fresh in appearance and the marks not so very old.”

The court did not err in permitting' the witness to so testify. Kelly had testified that the goats he had lost were branded ^; that the goats found by him and the sheriff were branded g, and then it was permissible for him to describe the condition of the brand, etc., and to the facts that would tend to show that the brand was originally and had been changed to g by running over the brand and running a line at the top to make a Z out of an L. The same may be said of the testimony of S. S. Henry, L. A. 'Clark, and T. M. Kelly. Of course, if, as contended by appellant, they were permitted to testify to what each other said on that occasion and to refer to the goats as stolen property, etc., this should not have been permitted, but the court, in approving the bill, states that they were permitted only to state what each saw and what was in fact found on examination of the goats.

The court did not err in refusing to have the goats brought into court. ' A view of the goats by the' jury is not permissible, neither can they be introduced in evidence. If the goats are in possession of the prosecution, the appellant will be permitted to 'view them on proper application, we feel sure, and then he and those who go with him can testify as to the brand, etc.

S. S. Henry testified to facts that showed he was an experienced stockman, having been engaged in that business for some 14 years or more, and having before this seen brands that had been burned. It was permissible for him to tell that he had examined the brands on the goats in question, as to the condition he found the brands, and the further fact that an old brand was on the goats, and that it had the appearance of having been burned over, and parts of the brand appeared to be fresh.

While it is shown that D. O. Haynes had been adjudged guilty of theft at a prior term of the court, yet the judgment in that case also shows that the sentence was suspended, and no sentence or final judgment had ever been pronounced against him. Under such circumstances he was a competent witness, and the court did not err in so holding.

The appellant having taken the stand as a witness in his own behalf, it was permissible to show that there was another indictment pending against him, charging him with a felony, as affecting his credit as a witness, but if the charge had been excepted to on the ground that such testimony was not so limited, it should have been sustained. We say this in view of another trial.

Another thing which is complained of in this court, but not called to the attention of the trial court, which we will mention in view of another trial. The court, in his charge, in instructing the jury in regard to suspending the sentence in case they found appellant guilty, instructed them they could not do so unless they found “that he had never before been guilty of a felony, and had also theretofore home a good reputation as a law-abiding citizen.” This is not the law, and the jury’s right to suspend the sentence should not have been so limited. Evidence of the prior reputation is admissible where one seeks a suspension of sentence to aid the jury in passing on that issue, but the only prerequisite to the right of the jury to suspend the sentence if they desire so to do is that they must first find ■ he had not theretofore been convicted of a felony, and the court in his charge should not require that they also find that his prior reputation had been that of a law-abiding citizen. The court could and should have probably limited the effect of this testimony to the issue of whether or not the jury would suspend the sentence in a proper charge, and told them under the facts in this case it was only admitted on that issue. We have said this much in view of another triál of the case.

This disposes of all the bills of exception in the record, but the ground most strenuously insisted on by appellant is that the evidence will not support the verdict. As the case will be reversed on other grounds, we will not discuss that feature of the case, but only suggest that if appellant was in possession of the Wallace pasture, where it is claimed the goats were found, this fact should be shown on another ‘ trial, or some evidence adduced that the goats were or had been in his possession.

The judgment is reversed, and the cause remanded. 
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