
    BELL v. STATE.
    (No. 8198.)
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1924.
    Rehearing Denied Jan. 28, 1925.)
    1. Criminal law &wkey;>478(2) — Bank cashier or teller may testify as handwriting expert.
    Bank cashier or teller who has had experience in examining signatures and writing may give opinion as to disputed writing or signature from comparison.
    2. Criminal law <&wkey;478(I) — Witness may be expert, though he may not consider himself one. '
    A witness may he an expert by reason of his experience and learning, although he may not consider himself one.
    3. Criminal law &wkey;>393(l> — Comparison between signature shown witness and signature made by defendant in grand jury room, held not ground for reversal.
    Comparison between signature shown witness and signature made by defendant in grand jury room held not reversible error, on ground that defendant was thereby compelled to. testify against himself, in absence of showing as to subject under investigation before grand jury.
    4. Grand jury&wkey;>41 — Comparison between signature shown witness and signature made by defendant in grand jury room held not viola-tive of statute prohibiting divulging of secrets of grand jury.
    Comparison between signature shown witness and signature made by defendant in grand jury room, without disclosure of proceedings of grand jury, held not violative of Pen. Code 1911, art. 316, prohibiting divulging of secrets of grand jury.
    5. Criminal lav/ <&wkey;l09!(ll) — Bill-of exceptions complaining of testimony held Insufficient.
    Bill of exceptions complaining of testimony as to comparison of handwriting, on letter with handwriting on envelope, without setting out either the envelope or the letter in the bill, held insufficient.
    6. Criminal iaw <&wkey;l09l(ll) — Bill of exceptions defective if it fails to set out the evidence complained of.
    Bill of exceptions complaining of admission of evidence is defective if it fails to set out the admitted evidence.
    7. Criminal law <®= 1043(2) — Refusal of requested charge covered by charge given not error in absence of specific written objections.
    In view of Vernon’s Ann. Code Cr. Proc. 1916, art. 735, refusal of reguested charge covered- by charge given held not error, in absence of specific objections in writing specifying the .particular matters complained 6f in charge given, remedied by requested charge.
    8. Criminal law <&wkey;742(2) — Whether one was accomplice held for jury.
    In prosecution for cattle theft, question of whether tenant who had an equal right with landlord to use of stalk field, and who turned stolen calf into stalk field at the direction of the landlord, an accomplice "of the' defendant, 'with suspicion or knowledge that calf was stolen, was an accomplice, held for jury. ■
    9. Criminal law &wkey;>507(2) — Rule as to “accomplice” stated.
    In prosecution for cattle theft, the mere fact that tenant, who had an equal right .with landlord to use of stalk field, knew that calf which he turned into field at request of' landlord, an accomplice of the defendant, was stolen, would not make tenant an accomplice unless he exercised control, management, or authority over calf, with knowledge that it was stolen, in such manner as to justify a conclusion that he had some criminal connection with it.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Accomplice.]
    Appeal from District Court, Swisher County; R. C. Joiner, Judge.
    
      Clint Bell was eonyicted of cattle theft, and lie appeals.
    Affirmed.
    W. W. Kirk, of Plainview, and E>. H. Cul-ton, of Tulia, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of one head of cattle from Ben Sharp, punishment being two years in the penitentiary.

In bills of exception 1 and 2, complaint is made of the testimony of one A. L. Harrison, and of certain proceedings in connection therewith. The witness testified that he had. been engaged in the banking business for 14 or 15 years; that he could detect the signatures of parties, and could tell by comparison of two writings whether they were made by the same person; that he was clerk of the grand jury of Swisher county, and one of his duties as such was to take down the testimony of witnesses; that appellant Bell had been before said grand jury. The witness was shown an instrument in writing, and testified that appellant had signed his name thereto while before the grand jury as a witness. A document referred to in the bill as “Exhibit S — 1” (but which is not otherwise described in the bill) was handed to witness, and he was permitted to testify that the name “C. E. Bell” as it appeared on said exhibit, and as signed to the statement in the grand jury room, was written by the same person. On cross-examination Harrison disclaimed being a handwriting expert. Objections were interposed to his testimony first, that the witness had not qualified to testify as to comparison of handwriting; second, that in offering the signature made by appellant before the grand jury there was an attempt to force him to give evidence against himself; third, that to answer the question would be revealing secrets of the grand jury room in a case where the truth or falsity of the evidence given therein was not under investigation. It seems to be well settled that a bank cashier or teller who has had experience in examining signatures and writing may give his opinion as to a disputed writing or signature from comparison. A witness may be an expert by reason of his experience and learning, although he may not consider himself one. Crow v. State. 33 Tex. Cr. R. 264, 26 S. W. 209; Bratt v. State, 38 Tex. Cr. R. 121, 41 S. W. 622. The objection tñat using for comparison the' signature of appellant made by him in the grand jury room was compelling him to give evidence against himself is untenable. The bill does not disclose the subject under investigation before the grand jury, when appellant made and signed the statement. So far as we are advised it may have had no reference whatever to the present charge against him. The cases of Williams v. State, 27 Tex. App. 466, 11 S. W. 481; Hunt v. State, 33 Tex. Cr. R. 252, 26 S. W. 206; Ferguson v. State, 61 Tex. Cr. R. 152, 136 S. W. 465, seem to furnish a precedent for the court’s ruling. In Kenni-son v. State, 97 Tex. Cr. B. 154, 260 S. W. 174, we had occasion to review the authorities just referred to, and held that they were inapplicable to the facts then before us. We find nothing in the bills now being considered which requires application of the principle discussed in Kennison’s Case. We cannot sustain the contention that mere proof of appellant’s signature, executed in the grand jury room, violates the statute which inhibits divulging the secrets of that body. Article 316, P. C. Nothing relative to the proceedings were put in evidence; the only fact proven being that appellant signed some statement. To what subject the statement related is not disclosed. Addison v. State, 85 Tex. Cr. R. 181, 211 S. W. 225, we think settles the question against appellant’s contention, and follows Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926.

Bill of exception No. 3 recites that, while the witness Harrison was testifying, “he was handed ^Exhibit S — 1,’ and the letter that the witness Lewis Smith had testified that he took from said ‘Exhibit S — 1,’ at Buston, La., after receiving said exhibit from the post office there, and was asked to examine the words ‘Tulia, Texas,’ on the back of the exhibit and ‘Tulia, Texas,’ written at the beginning or head of the letter, and asked to state to the jury whether, in his opinion, that ‘Tulia, Texas,’ at the head of the letter, and ‘Tulia, Texas,’ on the exhibit, were one and the same handwriting,” and that over appellant’s objection witness was permitted to answer that in his opinion they were the same handwriting. It appears from the bill that appellant made further objections to the introduction of the letter in evidence, which were overruled by the court, and exception reserved to the introduction of the letter and envelope marked “Exhibit S — 1.” Neither the envelope nor the letter are set out in the bill, and for that reason the same is • incomplete and fails to furnish us with sufficient information upon which we can base any proper ruling. Where complaint is made at the admission of evidence, a bill of exception attempting to preserve the point is defective if it fails to set out the admitted evidence. See Branch’s Ann. P. C. page 135, and Note 21, Vernon’s C. C. P., art. 744, for collation of authorities.

Lewis Smith was an admitted accomplice. In the sixth paragraph of the charge the jury was so instructed, and the law relative to an accomplice witness was embraced thereinl No exceptions whatever were addressed to the charge, but the court was requested to give, in lieu of paragraph 6, a special charge on accomplice testimony prepared by appellant’s counsel. In tbe special charge no reason is assigned why it was deemed more appropriate than the one contained in the general instructions prepared by the court. In Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790, we said:

“Eor the court to hold that the requesting of a special instruction, which the trial court could legitimately consider as a substantial repetition of his main charge, can take the place of an objection which should pertinently point out the matter complained of would virtually work a repeal of the statute,”

—that is, of article 735, Vernon’s O. C. P., which requires an objection to the charge to be in writing, and “distinctly specifying each ground of objection.” In the same case it was intimated that circumstances could arise under which a requested charge might be sufficient to raise the question of error in the absence of a specific objection to the main charge; this was discussed at length in Parker v. State (Tex. Cr. App. No. 7255) 261 S. W. 782, decided at the last term of this court, but the opinion has not yet been published, the mandate having been withheld to give opportunity for presenting application for writ of error to the Supreme Court of the' United States upon what was deemed by the defendant’s counsel as a federal question not related in any way to the point now being considered. In that case we held that, where there was an entire omission from the court’s charge of instruction on a pertinent issue, that a requested correct special charge upon that issue would be sufficient to raise the error in omitting it without a specific objection in writing calling attention to the omission. In the present ease the court did charge on accomplice testimony, and if appellant thought it erroneous or inappropriate he should have pointed" out by specific objections in writing the particular matters he complained of and which his special charge was thought to remedy.

Appellant requested the court to charge that'McGuyer was an accomplice. This the court declined to do, but gave a special requested charge instructing the jury that if they should find that McGuyer knew the animal in question was stolen property, and that- with knowledge of that fact he had retained the possession) and control of said animal, then, in .such event, McGuyer would be an accomplice, and that appellant could not be convicted on his testimony, and in this connection also told them that one accomplice could not corroborate the testimony of another. The court declined to charge that Mrs. McGuyer was an accomplice, or to submit that issue to the jury. Necessarily, the correctness or otherwise of the court’s action in these respects must be determined by the evidence. The stolen animal belonged to Sharp. He missed it with two others about November 7, 1922. It was taken from a stalk field in which it had been placed by the o.wner. The next time he saw it it was in the possession of Bivens, who was the brand inspector for Swisher county.

Smith, an admitted accomplice, owned 1,500 acres of land; 500 acres of which were in cultivation, and under one inclosure. Smith cultivated 250 acres of this 500 acres, and McGuyer cultivated the other portion on the halves as a tenant of Smith, who occupied a room in the house in which Mc-Guyer and his wife lived on the premises. After the crops had been gathered in 1922 this 500 acres was being used to pasture stock. Smith testified that he had sold appellant a stripped-down Ford car for 860, and was to take in payment therefor two good calves which would average in value $25 or $26 apiece; that late in the night of November 7th some one came to the house and called him, telling him' that he had “the other yearling calf”; that he went out and found appellant and one Parker with the alleged stolen animal in the back of an automobile; that appellant told him that night that he had gotten it out of a “pummy field that belonged to- a Dutchman, and that it was ‘hot stuff’ ”; that they put the calf in the lot. Smith testified that the calf remained in the lot until he left some weeks thereafter for Louisiana, at which time he had McGuyer turn it out in the stalk field with the rest of his (Smith’s) cattle; that up to this time McGuyer had nothing to do with it; that when witness left for Louisiana he made arrangements with McGuyer to look after the calf in question, together with other cattle Smith had on the place; that before this he had told McGuyer this calf was a stolen animal. ■ Before leaving for Louisiana- Smith had made arrangements with Howard George to put this animal in with a shipment of cattle which George was expecting to make. McGuyer’s testimony is to the effect that on the night Smith claims appellant brought the animal there, that he heard some one call Smith and tell him that he had something, but did not understand what it was, and that Smith (who had been at home up to that time during the night) went out and remained some little time; that, the next morning the calf in question was in the lot where he (McGuyer) kept his milk cows, and that Smith turned it into a back lot. Mrs. McGuyer’s testimony was practically to ¿he same effect relative to this matter. Me-. Guyer denied that he at any time had anything to do with the calf in the way of exercising control or management over it, and contradicted Smith’s testimony that the animal was left in his (McGuyer’s) control and management at the time Smith left to go to Louisiana, but says Smith turned the animal into the stalkfield himself before leaving. Both Mrs. and Mr. McGuyer say they thought the animal was stolen and had talked to one another about it. A short time after Smith had gone to Louisiana, appellant came to McGuyer and asked for Smith’s address, telling McGuyer, according to the latter’s testimony, that the calf in question had been stolen. McGuyer claims this was the first time he had positive information that the animal was stolen, although he had suspicioned it prior to that time. After appellant learned of Smith’s address in Louisiana he mailed him a letter which follows:

“Tulia, Texas, Nov. 21, 1922. Lewis I will write you a few lines today Lewis you have just about got us in bad by tell so much so you had better look out or they will get us in bad I didnt think you would take I think every will be ok now I let you know later see I got this stuff from Tom Parker it is understood with him and you sold them to him and he shipped if the get us up your friend Charley has talk to much so I let you here about this and they are alible to have you back so ans at once C”

' When Howard George got ready to ship his cattle he went to Smith’s premises to get the animals he had agreed with Smith to include in his shipment. He testified that the Sharp calf was in a lot, and that McGuyer helped him turn it out. . George drove the calf to the shipping pens, and there the mark on it was recognized by Bivens as Sharp’s mark, and he held up shipment of the animal. It is not contended that George had any knowledge or intimation even that the animal had been stolen, and as soon as its shipment was held up, George returned it to the Smith place and turned it in the stalk field. Upon these matters McGuyer' testified that when George came after the animal it was in the stalk field, and that he pointed out the animal to George, but had nothing to do in any manner with removing it from the premises.

We have not undertaken to set out in detail all of the evidence, but have tried to condense it upon the main points. We think it clear from the evidence in the record that the court committed .no error in declining to' charge the jury that as a matter of law McGuyer was an accomplice. His attitude in the matter must be viewed in connection with all the facts and circumstances surrounding his relations with Smith, and their joint possession of the 500 acres of cultivated land, and the joint use thereof. The court recognized this, and gave what we believe to be an appropriate charge under the circumstances. [McGuyer may have suspicioned it, or he may have even known ¡ by information from Smith or appellant that ; the animal was stolen, but his silence relative to the matter would not alone make him ? an accomplice. See many authorities on j this question under section 705, Branch’s Í Ann. P. 0. Smith had an equal right with ■ him to the use of the stalk field on the eul- | tivated land, and although McGuyer may have turned the animal into the field at the direction of Smith, it would be for the jury to say whether he was exercising control or possession over it, or was acting simply at the instance of Smith in doing so. It was a controverted question whether Smith put McGuyer in control or management of the animal when Smith left for Louisiana, and to make McGuyer an accomplice witness it would be necessary that he exercise control hr management or authority over it after he knew the same had been stolen, which would justify a conclusion that he had some criminal connection with it.

We find no error in the court’s action in refusing to charge that Mrs. McGuyer was an accomplice, or in refraining from submitting that issue to the jury. Outside the fact that she may have suspicioned or known that the animal was stolen, there is nothing in the record to show that she had anything to do with it whatever.

Prom what we have already said it follows that we think the court was not in error in refusing a special charge requested by appellant that if there was no evidence in the case other than that of Smith and Mc-Guyer tending to connect accused with the original taking of the animal, the jury should acquit. To have given such a charge would have been tantamount to telling the jury that McGuyer was an accomplice, and would have been contradictory to the charge which wé think he properly did give on this subject.

We cannot agree with appellant in his contention that there is no evidence in the record outside that of the accomplice Smith tending to connect appellant with the commission of the offense. The jury would have been authorized in determining that McGuyer was not an accomplice under the facts, and appellant’s statement to him that the calf was stolen, in connection with an inquiry as to Smith’s address in Louisiana and in connection with the letter mailed to Smith by appellant, would, we think, have a tendency at least to connect appellant with the theft of the animal. It further appears from the record that appellant fled from the state and was apprehended in the state of Colorado and brought back for trial.

Appellant introduced no evidence- whatever, making no affirmative defense, but relying apparently upon his contention that the state had failed to make out a case against him. _

Finding' no error in the record which j would justify a reversal, the judgment is ordered affirmed. I

On Motion for Kehearing.

MORROW, P. J.

The same questions that were given attention in the original submission have been reargued in the motion for rehearing, which shows much research and ability. We are constrained, however, to regard the matters presented properly determined in the former opinion. The motion for rehearing should be overruled, which is accordingly done. 
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