
    WILSON v. STATE.
    (No. 5761.)
    (Court of Criminal Appeals of Texas.
    April 21, 1920.
    On Motion for Rehearing, June 23, 1920.)
    1. Courts <&wkey;64(2) — Judge may call special term of court in one county during session of court in another.
    Under Vernon’s Ann. Code Cr. Proe. 1916, art. 93, a judge may temporarily adjourn a session of court in one county and call a special term in another if it becomes advisable.
    2. Criminal law <&wkey;l45 — Error in change of venue must be excepted to in'court from which change is made.
    Error in a change of venue must be excepted to in the court from which the change is made, and cannot avail in a plea to the jurisdiction of the court to which such venue is changed, under Vernon’s Ann. Code Cr. Proe. 1916, arts. 634r-637.
    3. Criminal law &wkey;> 142 — Change of venue as to one jointly indicted change as to ali.
    A change of venue as to one jointly indicted changes the venue as to all.
    4. Criminal law &wkey;>1090(19) — Refusal to grant continuance not reviewed in absence of bill of exception.
    A bill of exceptions is necessary to a review of court’s refusal to grant a motion for a continuance, and a recital of exception taken in the order overruling such motion will not take the place of a bill of exceptions.
    5. Criminal law &wkey;>l09l(2) — Bill of exceptions must show error.
    A bill of exceptions must so present the matter complained of that the reviewing court may be able to ascertain from the contents of the bill that error has been committed.
    6. Criminal law &wkey;>37l (2) — Evidence of theft of other sheep admissible to show intent, where a claim of ownership or mistake of identity exists.
    When defendant in a prosecution for theft of sheep depends upon an honest claim of right to the alleged stolen sheep, or a mistake of fact as to their identity, the state may prove other thefts, or the possession of other stolen property at or about the time alleged, as affecting the intent with which the alleged stolen sheep were taken.
    7. Criminal law &wkey;>670, 1120(1) — Impeaching evidence must be offered to render sustaining objection to question error; bill of exceptions held to present no error.
    Where defendant on cross-examination of prosecuting witness asked whether or not witness had not formerly testified as to a certain matter, no complaint can be made of refusal of court to permit an answer, where evidence was not offered to prove the former testimony, purpose being to attack the credibility of the witpess, especially where the intended introduction of the impeaching evidence was dependent on the witness answering, “No,” and a bill reciting that defendant expected to offer the evidence, not stating what the testimony would have been nor how it would have been dependent upon affirmative or negative answer, presented no error.
    8. Criminal law <&wkey;696 (5) — Refusal to withdraw answer not error where not objected to.
    Where a question was asked and answered without objection and there was no claim that there was any misunderstanding or reason for not objecting before the answer, court did not err in refusing to withdraw the answer.
    9. Criminal law &wkey;>ll70(l) — Exclusion of evidence harmless.
    Defendant cannot complain that court refused to permit a witness to cut out paper with a stamp used for marking sheep’s ears, where defendant’s counsel in his argument to the jury was allowed to cut out paper with the stamp and the jury was allowed to take the stamp and cut paper with them in their retirement. »
    10. Criminal law <&wkey;I17014(6) — Cross-examination held harmless in view of instructions.
    In a prosecution for theft of sheep, where defendant’s brother testified that he bought sheep marked as the state claimed were the alleged stolen sheep, which sheep he sold to defendant,,and state on cross-examination asked him if he was present at the trial of his father upon a charge of receiving and concealing these alleged stolen sheep, and he was required to answer that he was present but did not testify, there was no error, where the court instructed the jury not to consider the testimony elicited by the state.
    11. Larceny <&wkey;55 — Conviction of sheep theft sustained by evidence.
    Evidence held sufficient to sustain a conviction of sheep theft.
    12. Criminal law <&wkey;857(3) — Remarks of jurors concerning failure of defendant to testify did not require reversal.
    Remarks by several jurors concerning defendant’s failure to testify do not require a reversal, where the remarks were not made as any suggestion- of guilt, under Vernon’s Ann. Code Or. Proe. 1916, art. 790.
    On Motion for Rehearing.
    13. Criminal law <&wkey;1114(1) — Appellate court can consider matters only as shown in the record. <
    On appeal, only matters of fact and matters of law which appear in the record may be considered.
    14. Criminal law &wkey;>l 144(5) — Presumed on appeal that necessary steps were taken to render special term legal.
    On appeal, it must be presumed that all necessary steps were taken to make a special term of court legal, in the absence of any pleading or proof to the contrary in the court below.
    15. Criminal law <&wkey;1034 — Complaint of being hurried to trial, first made on appeal, too late.
    It cannot be asserted for the first time on appeal that defendant was hurried into his trial.
    
      Appeal from District Court, Edwards County; James Cornell,'Judge.
    Henry Wilson was convicted of sheep .theft, and appeals.
    Affirmed.
    Chambers, Watson & Wilson, of San Antonio, W. A. Wright, of San Angelo, M. E. Blackburn, of Junction, W. C. Dinden, of San Antonio, and M. E. Sedberry, of Eldorado, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Edwards county of the theft of about 150 sheep, the property of one P. M. Faulkner, and his punishment fixed at two years’ confinement in the penitentiary. Only so much of the facts become material as may be necessary to make clear the issues herein presented. The statement of facts is quite lengthy, much of the evidence being impeaching in character.

Appellant’s first contention is that the change of ■ venue from Sutton to Edwards county was made under such circumstances as that the latter county acquired no jurisdiction. As stated in his bill of exceptions, it appears that the district court convened in Edwards. county on August 25, 1919, and on that date, and after court was convened, the judge thereof, whose district included Sutton county, recessed, or adjourned said court in Edwards county, and went to Sutton county, and there convened court for the purpose of making an order changing the venue of this case from Sutton county to Edwards county, and that said judge did in fact convene a special term of the district court in Sutton county, in the late afternoon and night of August 25, 1919, and then made an order changing the venue of this case to Edwards county, requiring appellant to enter into recognizance to appear the following 'day in the latter county, which recognizance was given.

It further appears that on August 26, 1919, appellant, in the district court of Edwards county, filed his application, duly sworn to, for process instanter for a large number of witnesses in this case. The pith of appellant’s contention seems to be that the judge of the trial court could not legally preside over the courts of two counties in his district at the same time. It is provided by article 93 of Vernon’s O. O. P. that special terms of the district courts may be called whenever it may become advisable. There being no question but that the district judge in the instant ease deemed it advisable, and that he did call a special term of the district court in Sutton county, at which orders were duly made and entered on the minutes, we can see no reason, if it be admitted that it became advisable to hold said special term in one county during the session of court in another county in the district, why recess or adjournment, may not be temporarily had in the latter, to allow the transaction of business which makes advisable the special term in the former county. The judge of the court is not absent while any trial is in progress, and we know of no rule or statute which is violated by such procedure. The Elliott Case, 58 Tex. Cr. R. 200, 125 S. W. 568, seems in point. It appears in that case that, while the court was in session in Anderson county, the judge went to Houston county, another county in his district, and there convened court, and organized a grand jury, which proceeded to function. He then returned to Anderson county, where he was holding court. This court upheld the action of the trial court in such procedure, and refused to hold invalid an indictment returned by the grand jury impaneled and authorized to act at said special term.

It next appears that, after the jury were impaneled and some evidence introduced, appellant filed another plea to the jurisdiction of the court, based on the fact that he and E. L. Kiser were jointly charged in the indictment with theft, and that the case against Kiser had not been dismissed, nor had he been arrested under the indictment, nor required to enter into a recognizance, nor appeared and asked for any severance, and that Kiser was not named in the order changing the venue. This plea of the apr pellant was overruled. The action of the trial court must be upheld. Error in the change of venue if any, must be taken by exception in the court from which the change is made, and cannot avail in a plea to the jurisdiction of the court to which such venue is changed. Bowden v. State, 12 Tex. App. 246; Ex parte Cox, 12 Tex. App. 655. Change of venue as to one jointly indicted, changes the venue as to all. Cox v. State, 8 Tex. App. 664, 34 Am. Rep. 746. Nor do we think it a matter which in any event could avail appellant.

Complaint is made of the refusal to continue this case, upon the application of appellant. We find in the record no bill of exceptions to the court’s refusal to grant this continuance, and such bill of exceptions is always held to be necessary; and a recital of exception taken in the order overruling such motion will not take the place of a bill of exceptions. Branch’s Ann. P. C. § 304; Vernon’s C. C. P. pp. 529, 530, and authorities cited.

In his bill of exceptions No. 3, appellant objects to the following question, asked by the state of its witness Eck Kiser:

“Q. When you rounded up the live stock on that ranch for the purpose of delivering it to Ed Fowler, did you find any live stock there that did not belong to Henry Wilson?”

The witness answered, “Yes, sir.” Appellant then objected to said answer, and ashed that it he excluded, for the reason that the testimony should be confined to the bunch of sheep alleged to have been stolen in this indictment. The bill shows further that, -over the same objection, the witness stated that he found some of Faulkner’s sheep; that same were hept there two or three days; and that he (witness) moved them to old man Wilson’s ranch.

Under all the rules, a-bill of exceptions must so present the matter complained of as that we may be able to ascertain from the contents of the bill that error has been committed.

Turning our attention to the question first stated, it is apparent that we are unable to gather therefrom what ranch was referred to in said answer; nor is said fact made to appear anywhere in said bill; nor does anything appear in said bill that would indicate that appellant had anything to do with the sheep which were found by witness on some ranch; nor is any one connected with said sheep by the recitals of said bill, save and except the witness himself. The bill further states that, after the various answers were made, the court aslsed appellant’s counsel if he still objected, and, receiving an affirmative answer, the court instructed the jury not to consider the evidence. As presented, this bill is not sufficient to predicate error upon. If, however, it should be deemed sufficient to call for consideration, we would not feel that error was shown. In this case, appellant seems to depend upon an honest claim of right to the alleged stolen sheep, or, at most, a mistake of fact as to their identity on the part of the alleged owner or himself. When such'is the defense, it is allowable to prove other thefts, or the possession of other stolen property at or about the time alleged, as affecting the intent with which the alleged stolen property was taken.

Appellant presents his bill of exceptions No. 5, complaining of the court’s refusal to allow the witness Faulkner to answer the following question:

“Now, have you heretofore testified that you only bought four or five marks from Dabney, and did not buy any more from anybody else?”

Said bill states that the trial court at this juncture said, “You have already gone into that,” and refused to let the witness answer. The bill proceeds to set out that appellant had not gone into that, and appellant expected to show, if the witness had been permitted to answer, that upon a previous trial, involving the facts of this case, said witness had sworn that he only bought four or five marks from Dabney, and none from any one else; and further expected to show that he took and claimed from the defendant ten or eleven different marks, of sheep, after having sworn that he did not own more than four or five. This bill is neither approved nor refused by the trial court; but, in view of appellant’s affidavits filed in support of the same, we will treat it as if the same had been refused. The question, set out in said bill as being asked, called for an answer on the part of the witness of yes or no, and the refusal of the court to permit such answer is the only matter legitimately presented here for our determination. If counsel had other evidence which he desired to introduce, affecting the credibility of the witness Faulkner in this matter he cannot avoid the necessity of offering such evidence, and saving his timely bill of exceptions to its refusal, by a recital in this bill that he expected to offer such other testimony. Nor is it stated in this bill what the expected answer would have been; nor how the testimony, which he says he expected to introduce later, would be dependent upon an affirmative or negative answer. Such bill presents no error which we can determine. It is apparent that if the bill had stated that the witness would have answered, “No,” a different conclusion as to error would necessarily follow than if it was stated that the witness would have answered, “Yes.”

Bill of exceptions No. 6 shows that after a question was asked, and answered without objection or claim that there was any misunderstanding, or reason for not objecting before the answer, the court refused appellant’s request to withdraw said answer. It has often been held, in cases of this character, that this action of the court is correct.

By his bill No. 7, appellant complains that the trial court refused to allow the witness Childress, for the defense, to cut out of some paper, in the presence of the jury, an underbit, with the iron stamp used by witness Bond in marking the ears of the alleged stolen sheep; the stated design of such testimony being to exhibit such piece of paper before the jury, in order to show that the earmarks of the alleged stolen sheep, as traced and put before said jury, did not correspond with that made by said iron stamp. This bill is qualified by the trial court so as to make it appear that each counsel for appellant, in his argument, was allowed to use said iron stamp before the jury, and to cut underbits in paper, and to make such comparison, and, also, that the jury were permitted to take with them in their retirement said stamp and tracings. As qualified, we are of opinion that no injury resulted to appellant.

By his bill of exceptions No. 8, complaint is presented of the fact that Tom Wilson, brother of appellant, who had testified that he bought sheep marked as the state claimed were the alleged stolen sheep which sheep he sold to appellant, was asked on cross-examination, by the state, if he was present at the trial of his father in Sutton county upon a charge of receiving and concealing these alleged stolen sheep,v and, over objection, said witness was required and permitted to answer that he was present, and to further state that he did not testify upon that trial. It further appears that the trial court, being in some doubt as to the admissibility of this testimony instructed the jury not to consider it. We think no error is shown.

It is argued at length, and forcibly, that the evidence does not warrant the verdict. We cannot agree with this contention. The owner testified positively to the loss of his sheep, and^the accomplice, Kiser, testified positively that he and appellant took said sheep from the owner’s pasture, and drove them through the country out into appellant’s pasture. Kiser’s story is corroborated by Jim Chadwick, who saw Kiser and appellant driving the she^p to the Wilson pasture; also, by Claude Keene, who saw appellant and Kiser about 10 o’clock at night driving said sheep to his (appellant’s) pasture; also, by W. B. Adams, who saw said parties driving said sheep; also, by Thomas Bond and his son, who identified by flesh marks certain sheep found in appellant’s pasture, as being sheep which they had sold to Dabney and he to Eaulkner, the alleged owner. The evidence is sufficiently strong, in our opinion, to necessitate upholding the verdict of the jury, irrespective of the testimony as to the marks, etc.

It is claimed that there was misconduct of the jury, in that there was comment, after they had retired, on the failure of appellant to testify. The evidence bearing on this issue was heard by the trial court and he approved the bill of exceptions, stating by way of qualification that the only reference to the matter was as follows: That a juror named Johnson, who was in favor of acquittal, and the last to agree to a verdict of guilty, when arguing in the jury room in behalf of appellant said:

“If Henry Wilson had testified and had claimed to have purchased the sheep from Baser, we would have as much right to believe him as we did to believe Baser.”

To which remark none of the jurors paid any attention, excepting that a man named Foley replied, “Ves, if he had had any witnesses to back him up.”

We think the trial court warranted in his further statement qualifying this bill, that he was of opinion that the juror Johnson, did not intend his remark as any suggestion of guilt because of any failure on the part of appellant to testify, nor did any of the other jurors so understand it. Our statute, article 790, Vernon’s O. O. P., provides that the appellant may testify in his own behalf, and that his failure to so testify must not be taken as a circumstance against him, nor shall same be alluded to by counsel in the cause. There have been many cases decided by this court, where the mattei* of such failure was referred to in the jury room, but in such' way as to manifestly be not against the accused, and in such cases this court has declined to .reverse. Veach v. State, 71 Tex. Cr. R. 181, 159 S. W. 1069; Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263; Powers v. State, 69 Tex. Cr. R. 494, 154 S. W. 1020; Rhodes v. State, 69 Tex. Cr. R. 45, 153 S. W. 128; Cooper v. State, 72 Tex. Cr. R. 266, 162 S. W. 364.

Some complaint is made of a discussion among the jurors as to the argument of the attorneys, and some one in the jury room asked, “Where was Mr. Speed?” It appears that a man named Speed had been mentioned in the testimony of Mr. Faulkner and referred to in the argument. We have examined this closely, and find nothing erroneous in the discussion among the jurors, as the same appears in the record.

We have given this case our careful scrutiny, aided by an able and exhaustive brief filed on behalf of the appellant, but find no reversible error in the record.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant, in his motion for a rehearing, again urges various matters which we have passed upon in our original opinion, some of which we will notice, but others of which will be overruled without further discussion.

The first ground urged is that the trial court should have sustained appellant’s plea to the jurisdiction, based upon the contention that the special term of the district pourt of Sutton county, convened by the judge for the purpose of changing the venue of this case to Edwards county, was illegal.

We are compelled to take these matters as we find them in the record. If there be matters of fact upon which such claim of illegality is based, they must appear; and, if matters of law, they must also be so presented as that they are before this court. Examining the plea to the jurisdiction, we find that it sets forth that, while the district court was in session in Edwards county, the judge thereof convened court in Sutton county, the same being another county in his district, and entered an order in the latter changing the venue of this case to Edwards county, and instructed this appellant to enter into a recognizance to duly make his appearance before the district court of the latter county. After reciting these facts, appellant then sets forth his entire complaint against the proceeding, as follows:

“Defendant says that the district court of Edwards county being in session at the time presided over by the Honorable James Cornell, the said judge had no power or authority under the law to convene a term of the district court of Sutton county, and any attempt so to do, and any order made at said alleged term, special term, by said judge who was the same judge then holding the court in, Edwards county, of the district court of Sutton county, Tex., on the 25th day of August, 1919, is null and void, and this cause is therefore pending before the district court of Sutton county, Tex., and the district court of Edwards county has acquired no jurisdiction to try the same.”

In his bill of exceptions to the action of the trial court in overruling said plea, the details are more particularly set out; but the above is the statement of appellant’s objection as presented to the lower court in his plea, and upon which he must stand or fall in this' court, provided we could consider said plea at all. It does not appear therefrom that there was any claim that appellant’s attorneys were not present in the district court of Sutton county when the entire transaction took place; nor that appellant did not personally appear and agree to everything that was done. It is now urged in his motion that notice of the convening of said special term of court was necessary; but, if notice was necessary, no such objection was set forth in said plea nor urged, nor was the fact established that notice was not given in any way, either by admission of the parties, or proof of that fact. Our adjudication must be limited to the matters brought before us, as contained in the plea to the jurisdiction and what is set out. We adhere to our view that it was not made to appear that the trial judge was without power and authority to change this venue at the special term of the district court of Sutton county, convened for that purpose. We are compelled to presume that all necessary steps were taken in order to make said special term legal, in the absence of any pleading or proof to the contrary in the court below.

Much argument appears in the motion to the effect that appellant was hurried into this trial. If so, he cannot complain, for our statutes give to every one accused of crime two days after his arrest in which to file pleas, etc. When this right has been claimed and denied in the lower court, this court has never failed to reverse; but it must be asserted in time, and in the trial court, and not here for the first time. Appellant did not ask for such time in the trial court.

Appellant again urges the error of the refusal of a continuance, which was disposed of by us in the original opinion, upon the ground that no bill of exceptions was reserved to the refusal thereof. Eor us to hold that the trial court erred in this particular would be to overturn an unbroken line of our decisions without reason therefor. A decision by this court that the refusal of the trial court of an application for a continuance would ipso facto be a reversible error would be a grievous wrong, and ingraft a very hurtful rule upon our practice. Illustrations too numerous to mention might be had of eases wherein applications for con-' tinuance were overruled, and the subsequent developments of the case, as well as other matters connected therewith, fully demonstrated the correctness of the court’s action. It has always been properly held that if, when the trial was concluded, appellant still thought himself to be injured by being denied a continuance, he must bring his'objection before the trial court in the form of a bill of exceptions, in order to have it considered here. We see no reason for changing our former holding upon this subject, or for overruling that line of decisions."

As his third ground of his motion, appellant states as follows:

“Because the court erred in holding that error in the change of venue, if any, must be taken by exception in the court from which the said change is made, and cannot avail in a plea to the jurisdiction of the court to which such venue is changed, where it appears that defendant has not been arrested at the time such change of venue is made.”

Any question of error committed by the court of Sutton county, which it is thought desirable .to raise here, should have been made a matter of exception in the district court of Sutton county, before the venue was changed to Edwards county. The transcript of the proceedings had in Sutton county, which accompanied the record to Edwards county on change of venue, and which appears in this record, shows that appellant was properly recognized in Sutton county to appear in Edwards county. No bill of exceptions appears in this record to any action of the district court of Sutton county. The whole matter is disposed of by our statutes. Articles 634-637, Yernon’s O. O. P.

We regret our inability to agree with distinguished counsel for appellant .in their view, but believe the established law ’ is against them. The other contentions made in the motion do not meet with our approval.

The motion for rehearing will be overruled. 
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