
    HENRY v. STATE.
    (No. 9392.)
    (Court of Criminal Appeals of Texas.
    Nov. 4, 1925.)
    1. Criminal law &wkey;»925!/2(3) — In prosecution for theft statement of one juror to another held not'to warrant granting new trial as being discussion of evidence not introduced on witness stand.
    In prosecution for theft of hog, statement of one juror to another that sheriff had given testimony which was not in fact given, held not to warrant granting of new trial, as being discussion of evidence not introduced upon witness stand; it being within rule that juror cannot impeach his verdict. ■
    2. Larceny <&wkey;73— In prosecution for theft of hog, refusal to instruct on question as to ownership held reversible error.
    Where, in prosecution for theft of hog, defendant and S, testified that hog taken from possession of prosecuting witness belonged to and was sold by S. to defendant, refusal to instruct on question as to whether hog belonged to prosecuting witness and whether it belonged to S., and had been killed by defendant under mistaken belief that he had purchased it from S., held 'reversible error.
    Commissioners’ Decision.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    Guy Henry was convicted of bog theft, and be appeals.
    Reversed and remanded.
    
      Rowe & Rowe, of Livingston, for appellant.
    Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

The appellant was tried and convicted in the district court of Polk county for the offense of hog theft, and his punishment assessed at two years in the penitentiary.

Briefly stated, the record shows the facts in this case to be: That the appellant was convicted upon the allegation in the indictment charging him with the theft of a hog belonging to Edmond Curtis. That one Jim Smith, á witness in this ease for the appellant, let the prosecuting witness, Curtis, have a red jersey sow,to raise pigs on halves, and that said sow, during the time that she was in the possession of said prosecuting witness, Curtis, brought a litter of pigs out of which 10 were raised, 5 of which were to, and did, belong to Jim Smith and the other 5 to said Curtis. That this litter was raised near the premises of said appellant by said Curtis until they were about 8 or 9 months old, and up to this point there is no variance between the testimony of the state and the appellant. The witness Curtis contends that this litter was afterwards divided between him and Smith, and that he marked his 5 in his own mark, and that said Jim Smith received his 5 of said hogs and marked them in his own mark, and took them out of said neighborhood and to where he had recently moved. The said Smith and appellant and one or two other witnesses testified to the effect that said Smith had not taken his 5 hogs out of this litter from said neighborhood, and that they were left there where they were raised, and that he sold the hog in question to appellant, and the appellant paid him for same, and the said Smith further testified that his 5 hogs in said litter were not marked in his mark, but the whole litter was marked in the mark of the prosecuting witness, Curtis. The issue on this point was sharply drawn between the state and the appellant. The prosecuting witness, Curtis, testified that he could not identify the hog which he found killed and cut up in appellant’s house, save and except its ears were marked in his mark, and that his hogs were accustomed to coming up at night, and he put them in the lot, and that he missed one of said hogs on the' night that he discovered the fresh meat and a hog with his mark in appellant’s possession. This is a sufficient statement of the facts for the purpose of discussing the points raised in this case.

The appellant raises, in his motion for a new .trial, misconduct of the jury on account of one of the jurors stating to another juror, who was favorable to acquittal, that the sheriff had testified in behalf of the state that he went to the premises of the prosecuting witness and only found 4 hogs in the pen on the night in question, which would show and corroborate the theory of the prosecuting witness that one of his hogs was missing that night. The record discloses that the sheriff did not make any mention in his testimony as to how many hogs he saw in the pen of prosecuting witness. We are of the opinion that there is no error shown in the ruling of the court against appellant’s contention in this case on this point, as this comes clearly within the decisions which hold that it is not proper for a juror to impeach his verdict, and does not come under the rule that it is improper for jurors, after tliey retire, to receive and discuss evidence not introduced upon the witness stand.

Appellant contends that the court erred in not giving his special charges to the jury, affirmatively presenting the theory of the defense in this ease, and especially in refusing his special charge No. 1 to the effect:

“If you believe fronl the evidence that the hog in question was not the property of Edmond Curtis, or if you have a reasonable doubt as to that fact, you will acquit the defendant and say by your verdict ‘Not guilty.’ ”

The court nowhere in his general charge, or elsewhere charged the jury on this phase of t;he case. It is the theory of the appellant’s counsel that this issue was raised by the testimony of the witnesses in behalf , of the appellant to the effect that Jim Smith had not removed from said vicinity his half of said hogs in said litter, and that they were still in that section, and that,this issue was raised as to whether or not the hog in controversy belonged to Smith or belonged to the prosecuting witness, Edmond Curtis, or was the hog sold by said Smith to said appellant. We think the evidence raised this issue as to whether or not the hog in question was in truth and in fact the property of the prosecuting witness, and whether or not it belonged to the said witness Jim Smith, and that appellant had killed same under the mistaken belief that he had purchased it from said Smith. This being the case, we think the court should have either given the charge in question or charged the jury on this phase of the case, and it was error in his refusing to do so. We think the ease of McGowan v. State, 89 Tex. Cr. R. 67, 229 S. W. 323, and the case of Pinkerton v. State, 92 Tex. Cr. R. 449, 244 S. W. 606, support the contention made by the appellant in this case upon this issue.

There are other matters complained of in the record, but after a careful consideration of same we are of the opinion that the matters discussed .and the errors mentioned are the only matters involved which require the consideration of this court.

Eor the error above discussed and pointed out, we are of the opinion that the judgment of the trial court should he reversed, and remanded, and it is accordingly so ordered.

PER CURIAM.

The foregoing opinion of of,the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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