
    MATTHEWS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 26, 1913.)
    1. Criminal Law (§ 770) — Triai>-Insteuc-tions.
    Where, in a prosecution for hog theft, defendant denied that he had anything to do with prosecutor’s hogs, claimed that he was absent on the day of the taking, buying hogs in another direction, and that the hog meat found in his smokehouse was the product of the hogs so purchased, it was error for the court to omit to charge on the defensive matter so presented.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. § 1806; Dec. Dig. § 770.]
    2. Criminal Law (§ 656) — Reception of Evidence — Statements by Court.
    Where, in a prosecution for hog theft, a witness testified that he had followed the tracks of the hogs alleged to have been stolen, and his verdict did not altogether harmonize with that of other witnesses with reference to the tracks, he having testified that he drank eggnog the morning he followed the tracks, it was error for the court, on witness being asked how much he drank, to interpose an objection sua sponte that it was immaterial how much he drank, that he might have been drunk, and could have hunted the hogs whether he was competent or not; such statement being viola-tive of the statute prohibiting statements by the court with reference to the weight and credibility of the evidence.
    [Ed. Note. — For other cases, see Criminal' Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]
    Appeal from District Court, Wharton County; W. C. Carpenter, Special Judge.
    
    Charles Matthews was convicted of hog theft, and he appeals.
    Reversed and remanded.
    Linn, Conger & Austin, of Bay City, and W. L. Hall, of Wharton, for appellant. C. E. Lane, Asst. Atty. Gen.,.for the State. ,
    
      
      iror other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DA.VIDSON, P. J.

Appellant was convicted of hog theft.

Tlie state’s theory was that appellant committed theft of the hogs from Peter Tharp. Peter Tharp testified .he was the ow,ner of several hogs, three of which he missed on Thursday; that he tracked three hogs from near his place to .the premises of another man, and within 150 yards or such matter from appellant’s residence or premises. He introduced testimony of another witness or two, who also followed the tracks of the hogs. One witness testified that he knew and could identify one of the tracks as those made by one of Tharp’s hogs. He had seen the hogs several times, perhaps quite a number of times; but he could identify that particular track as the one made by a particular hog, although there was no peculiarity about the track, but he just knew that that was the track of one of the missing hogs. The witnesses who followed the tracks of the hogs stated that there were no- tracks of human beings following the hogs, or anywhere in proximity of the tracks of the three hogs they followed; nor were there any horse tracks following the hogs. They testified that the hog tracks were plain, but that there were no evidences that anybody had followed or driven the hogs so far as indications on the ground were concerned. They differ considerably about the details of the matter in regard to following the tracks. One witness says the hogs rooted along the trail where they went, turning to the right and left, and rooting here and there, and others said they did not. It is not intended here to go into a detailed statement of these matters. There was a search warrant obtained, and an officer went to appellant’s house and examined his smokehouse. In it they found the meat, or part of the meat, of three hogs. There, is a difference of testimony among the state’s witnesses in regard to the discovery there. For instance, the officer says he carried all the meat away, and, among other things, the head of one hog. Another witness says they carried the heads of three hogs away. The witnesses for the state testify that the meat found in appellant’s smokehouse would correspond fairly well with the size of the hogs that belonged to Tharp. Appellant denies having had anything to do with Tharp’s hogs; he shows that he was absent that day making a purchase of hogs some miles distant; and that he brought these hogs home in a wagon, and killed three of them. " That he bought hogs was abundantly proven by quite a number of witnesses. That he killed three hogs, the meat of which was found in appellant’s smokehouse, is proved by witnesses who assisted him in the killing, as well as by his own testimony, and that those hogs he killed were about the same size as those that Tharp missed, and practically the ’ same grade and character of hogs. He bought 11 hogs, for which he paid ?45. He proved by one of bis neighbors, from whom he borrowed a pair of mules to wort to the wagon in connection with defendant’s two mules, which he hitched to the wagon and went after.the hogs, that he bought and brought them home. This seems not to have been controverted, and was abundantly shown. The vendor of the hogs testified in the case as did several witnesses, and knew of the transaction, as well as those who assisted in bringing the hogs home and in killing three of them, and placing the other eight in his pen, and which appellant had in his pen at the time the officers went there. In addition to this, appellant proved an enviable reputation as a law-abiding honest man for 25 or 30 years. This was not controverted. The writer is of the opinion that the state failed to make a case, and that the defendant proved his innocence even beyond a reasonable doubt; and unless the state can do better upon another trial, this case should not be prosecuted.

The court failed to charge the jury in regard to appellant’s defensive matters, which have been mentioned. This was raised in various ways by appellant, and is presented for reversal. The jury ■ should have been instructed fully and fairly in regard to the testimony introduced by appellant. The authorities are so numerous and harmonious on this question it is not deemed necessary to cite them. ■

The court’s charge on circumstantial evidence is criticised. We are of the opinion the court’s charge on this matter is not correct, and, upon another trial, a full charge on this phase of the law should be given if the case should be again tried.

There is another question reserved by bill of exceptions, which discloses that, while the state’s witness Harris was being cross-examined, the following question was asked, “What did you do with the eggnog that you had that morning?” to which the witness answered, “I drank the eggnog.” The witness was then asked how much he drank, and he answered he drank all he had. Whereupon the court of its own motion introduced the following objection to such testimony: “It is immaterial how much eggnog he drank; he might have been drunk, but he hunted hogs; and it is immaterial how much eggnog he drank; if he hunted them, it must stand, unless it be contradicted; if he said he hunted them, he could have hunted them, whether he was drunk or sober. And he could have hunted them whether he was competent or not.” Appellant urged the following exceptions: First. Because said remarks of the court express the opinion of the court of the testimony, and was hurtful and prejudicial to defendant, and violative of the rule which inhibits the court from expressing its opinion oh the evidence. Second. Because the expressed opinion was directly upon the weight of the evidence. Third. Because the mental and physical condition of the witness in trailing hog tracks at least five days old was a material question touching his credibility, and the weight of his testimony as to such tracks, and the place they led from, and the place to which they were followed. This' bill is approved with the qualification that the witness stated: “The eggnog he drank on Christmas day did not hurt him. This statement was made by the witness voluntarily, and not in answer to any question put to him with reference to it during the time the court and counsel for defendant were in the colloquy stated in this bill of exceptions.” This qualification of the judge does not help the matter. If the witness had' drunk eggnog enough to be affected, it might have some bearing with the jury as to his condition at' the time he was following the tracks; at least it was admissible for what it was worth to go to the jury in showing the condition of the witness at the time he was following the tracks. If we were to go to the testimony of this witness in connection with all these matters, it could be shown readily this witness was not altogether in harmony with the other witnesses in regard to tracks. It certainly was error and violative of the statute on the part of the court to make the remarks in the presence and hearing of the jury, which he admits in the bill of exceptions he did make. It was a direct comment on the testimony, and violative of the statutory enactment.

For the reasons indicated, the judgment is reversed, and the cause is remanded.  