
    MOONEY v. STATE.
    (No. 3416.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.
    On Motion for Rehearing, May 12, 1915.)
    T. Ckiminal Law @=>112 — Venue—Statutory Pkovisions.
    Code Cr. Proc. 1911, art. 248, providing that the offense of receiving stolen property may be prosecuted in the county where the theft occurred, gives the court of the county where a theft occurred jurisdiction of the offense of receiving the stolen goods, though accused lived .and received and concealed the goods in another county.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 220-226, 230; Dec. Dig. @=> 112.]
    2. Ckiminal Law @=>1150 — Change of Venue — Rulings—Review.
    Denial of venue on the grounds specified in Code Cr. Proc. 1911, art. 628, will not be disturbed, where the grounds wore directly controverted by the state, unless the court abused its discretion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3044; Dec. Dig. @=31150.]
    3. Receiving Stolen Goods @=>8 — Evidence —Admissibility.
    On a trial for receiving stolen cattle, it was not error to permit witnesses to testify that the alleged stolen cattle belonged to them.
    [Ed. Noto. — Eor other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. ■@=>8.]
    4.Receiving Stolen Goods <S=^>7 — Indictment — Evidence.
    It is proper, if not necessary, to permit the state to prove the allegation, in an indictment for receiving stolen property, that the property was received by accused from a person to the grand jurors unknown, and the district attorney and grand jurors may testify to the efforts made to ascertain the identity of the unknown person.
    [Ed. Note. — Eor other eases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. <S=>7.]
    .5. Animals <§=>10 — Receiving Stolen Goods @=>8 — Evidence—Admissibility.
    On a trial for receiving stolen cattle, evidence of the brands on the cattle originally and of the subsequent burning of the brands was admissible to prove ownership and identity, though the original brands were not recorded, for, under Rev. St. 1911, art. 7160, as amended by Acts 33d Leg. c. 69, brands of cattle, whether recorded or not, may be proved to show ownership and identity.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. @=>10; Receiving Stolen Goods, Gent. Dig. §§ 15-18; Dec. Dig. @=38.]
    6.Ckiminal Law @=3547 — Evidence—Admissibility.
    The testimony of accused in another court may be proved by one hearing the testimony.
    [Ed. Note. — For other cases, see Criminal .Law, Cent. Dig. §§ 1237-1246; Dec. Dig. @=> 547.]
    7.Criminal Law @=31090 — Refusal of Instructions — Bill of Exceptions — Review.
    Refusal of requested charges is not reviewable, where accused took no bill of exceptions to the refusal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2053, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. @=>1090.]
    8.Receiving Stolen Goods @=>8 — Evidence —Sufficiency.
    Evidence held to sustain a conviction of receiving stolen cattle with knowledge that they were stolen.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. @=>S.]
    9. Criminal Law @=>1092 — Bill of Exceptions — Modification by Pkesiding Judge —Bill by Bystanders.
    Where the judge approves a bill of exceptions with a qualification, accused refusing to accept the qualification can only prove the facts as claimed by him by a bystander’s bill, properly sworn to as prescribed by statute.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. @=>1092.]
    10. Criminal Law @=>S28 — Instructions — Requests.
    Requested instructions must be in writing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2007; Dec. Dig. @=>S28.]
    11. Criminal Law @=31171 — Improper Argument by Prosecuting Attorney — Reversible Error.
    The court on appeal will not reverse a conviction because of improper argument of the prosecuting' attorney, unless it very clearly appears that the rights of accused were prejudiced thereby.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dee. Dig. @=> 1171.]
    12. Criminal Law @=31037 — Improper Argument by Prosecuting Attorney — Objections — Review.
    Where an objectionable statement is made in argument by the prosecuting attorney, accused must not only object thereto but must request, in writing, a charge requiring the jury to disregard it, or he cannot complain, unless the argument is obviously of a nature to impair his rights.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1091, 2645; Dec. Dig. @=> 1037.]
    13. Criminal Law @=>1171 — Improper Argument of Prosecuting Attorney — Prejudicial Error.
    Where the guilt of accused, charged with receiving stolen cattle with knowledge that they were stolen, was clearly established, the improper statement of the prosecuting attorney that the story of thievery, of which accused was the head, rivaled the stories of Robin Hood, that accused was the captain of cow thieves, and the head of an underground system from a pasture in one county down through another county, terminating in accused’s pasture, where the cattle were found, and that cattle stealing must be broken up, was not ground for reversal.
    [Ed. Note. — Eor other cases, see Criminal Lav/, Cent. Dig. §§ 3126, 3127; Dec. Dig. @=» 1171.]
    
      14. Receiving Stolen Goods — Elements — Evidence.
    To convict one of receiving stolen goods, the state must show the larceny of the goods and that accused knew that they were stolen.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Gent. Dig. §§ 15-18; Dec. Dig. <@=>S.]
    Appeal from District Court, Wheeler County; F. P. Greever, Judge.
    M. L. Mooney was convicted of receiving and selling stolen cattle, and he appeals.
    Affirmed, and motion for rehearing overruled.
    Geo. H. Culp, of Gainesville, C. C. Small and R. H. Templeton, both of Wellington, and Ramsey, Black & Ramsey, of Austin, for appellant. R. E. Taylor, of Henrietta, and C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted for receiving and concealing stolen cattle, knowing they were stolen, and his punishment fixed at the lowest authorized by law. He was formerly convicted of the same offense, and his punishment fixed at the highest authorized by law, but under a different’ indictment. The former conviction was reversed because the indictment therein averred the theft, and receiving and concealing, both occurred in Wheeler county, when the charge of the court authorized his conviction if the. theft occurred in Wheeler, but the receiving, etc., occurred in Collingsworth, county. 164 S. W. 828. Whereupon this indictment was found, which avers the theft occurred in Wheeler, and the receiving and concealing in Collingsworth, county. The indictment follows the statute and the approved forms and is sufficient. The court properly overruled appellant’s motion to quash it. Mooney v. State, supra; sections 1524, 1525, Wh. Ann. P. C.; Wil. Cr. Forms (4th Ed.) p. 350; Branch, Cr. Daw, § SIS.

The statute'(C. C. P. art. 248) expressly enacts this offense may be prosecuted in the county where the theft occurred, and all the decisions are in accordance therewith. There can be no question but that Wheeler county had jurisdiction and venue of this case — the theft was committed therein — even though appellant lived and received and concealed the cattle in Collingsworth county. The court correctly overruled his motion in arrest of judgment.

Appellant made a motion to change the venue on both statutory grounds (C. C. P. art. 628), which was directly controverted by the state (C. C. P. art. 633). Thereupon the judge heard all the evidence thereon, which was properly preserved in a bill. We have carefully read all this evidence. We think it unnecessary to state it. The true rule is stated by this court in Tubb v. State, 55 Tex. Cr. R. 617, 117 S. W. 858, as follows:

“Of necessity, in respect to a question of this kind, much ought to be left to the discretion and sound judgment 'of the court trying the case, and in no case should the judgment of conviction be set aside on account of the action of the trial court in refusing a change of venue, unless it is clear that such court has abused his discretion. This is the doctrine laid down in almost the precise terms above 'stated by Judge Hurt in the case of Gaines v. State, 37 S. W. 331. See, also, Cox v. State, 8 Tex. App. 254 [34 Am. Rep. 746]; Bohannon v. State, 14 Tex. App. 271; Martin v. State, 21 Tex. App. 1 [17 S. W. 430]; Connell v. State [45 Tex. Cr. R. 142] 75 S. W. 512: Reeves v. State [47 Tex. Cr. R. 340] 83 S. W. 803; Earles v. State [47 Tex. Cr. R. 559] 85 S. W. 1; Adams v. State [48 Tex. Cr. R. 452] 93 S. W. 116.”

And, as was said in that case, so we say in this:

“After a careful inspection of the record, we do not believe that we could or would be justified, in view of the action of the trial court in conflicting evidence, in reversing the judgment on the failure of the court to grant a change of venue.”

There was no error in permitting the witnesses Champ and E. L. Davis each to testify the alleged stolen cattle belonged to them. This was held in the other appeal of this case. Both witnesses fully identified some of these cattle by flcshmarks.

The indictment alleged appellant received said cattle “from a person to the grand jurors unknown.” It was proper, if not necessary; that this should be proven. The testimony of the district attorney and grand jurors showing this allegation was true, and the efforts made by the grand jury to ascertain the identity of this unknown party was admissible. Section 1507, subd. 2, Wb. Ann. P. C., and cases there cited.

All evidence of the various witnesses objected to by appellant’s several bills, as to tbe brands on said cattle originally, and that these brands had been burned subsequently, was admissible. It all tended to show the identity of the cattle as those belonging to the alleged owners, and to show their condition both before and at the time appellant received them, so as to affect him or tend to do so with knowledge that they were stolen. By Act March 31, 1913, p. 129, article 7160 of our Revised Statutes was so changed as that brands on cattle now, whether recorded or not, are admissible to prove both ownership and identity. Turner v. State, 71 Tex. Cr. R. 477, 160 S. W. 358.

The court did not err in admitting the evidence by Mr. Davis as to what appellant swore at Amarillo in the federal court on a trial therein between the Davis brothers and appellant over the possession and ownership of said cattle, nor in overruling his motion to exclude this evidence. This was held admissible on said former appeal. 164 S. AV. 829. We will somewhat more fully state and discuss this evidence later herein. Appellant’s bill 13, to a question to and answer thereto of the witness Champ Davis, is too meager and insufficient to require review. But if it could be considered, in the light of the record, it would show no reversible error. No error is shown by bis bills 13 and 18 to questions and answers of the witness Worley, as to appellant’s condition at the time it was claimed be bought said stolen cattle and at the time he testified at Amarillo about them. Appellant had introduced some testimony tending to raise the issue of his sanity at both these times, and the testimony of Worley was in rebuttal on that issue.

There is a document in the record which is signed by appellant’s attorneys as objections to the court’s charge, and in some instances stating he asked certain designated charges to supply the omission and make corrections of the court’s charge. Some of these objections are very general — too general to point out any specific defect, if there had been any, in the court’s charge. This document; does not show to have ever been presented to or acted upon by the judge, for the judge makes no noting thereon that it was ever presented to or acted upon by him. Nor does the record show any bill of exceptions by appellant to the court’s refusal or failure to consider or comply with any of his said objections. There are also in the record some ten special charges apparently requested by him. The judge gave three of them and refused the others. When those refused were presented to the judge is in no way made to appear, further than they were filed on the same day the verdict was rendered. Appellant took no bill whatever to the court’s refusal to give either of those he refused to give. Hence, whatever complaints appellant has in reference to these matters are in no condition to be reviewed as uniformly held by both the Civil Courts of Appeal and this court. Ross v. State, 170 S. W. 305, and cases cited. However, we have gone over all these objections and special charges. The action of the court, even if we could properly review these matters, was correct. The court’s charge in connection with those special charges of appellant’s given correctly submitted every issue in the case necessary or proper to be submitted.

In order to properly discuss and decide appellant’s only other contentions — remarks of the prosecuting attorney to the jury in argument, after all evidence was in and the charge had been read to them — it will be necessary to succinctly state the material facts established by the evidence. We have carefully read, more than once, and studied, the statement of facts. It is remarkable and unusual in that most all the material criminating facts are testified to by several witnesses, who are in no way disputed or impeached; and, where any material criminating fact is testified to by one witness alone, he is in no way disputed or impeached, and the other undisputed proof practically demonstrates the truth of his testimony. We will therefore not detail the evidence of each witness, though occasionally we may state what some particular witness testified.

E. T. and Champ Davis, brothers and equal partners, were cattlemen in 1912-13, and had been for many years. They owned one large fenced ranch somewhat in the southeast corner of Wheeler county, on which Champ Davis lived, and on which, in the fall of 1912 and winter of 1912-13, they had and kept a large number of cattle — more than 2,000 head. They also had some smaller fenced ranches in Oklahoma, on one of which E. T. Davis lived. On some of these latter, during the same time, they had and kept some cattle, but nothing like the number as on their said large ranch. In the winter they fed their cattle. In about November, 1912, or before then, they placed the 12 head of cattle described in the indictment herein, with others, on their Wheeler county ranch and undertook to keep them there. Some time between the time they placed them on said ranch, and about March 1, 1913, 60 head, including said 12, were stolen therefrom. No one could tell, with certainty, whether the 60 head were all stolen at one time by one person, or different numbers at different times by another person or persons. There is evidence which would have authorized the jury to believe they were all stolen at one time, while other evidence would indicate they were stolen at different times. As soon as .the owners missed the 60 head from their ranch, about March 1, 1913, they began a search for them, but failed to find any of them anywhere about their ranches, and have never found but the said 12 head. Said Davi's Bros.’ brand was the figure 2 on the right shoulder and two stripes on the right leg. All these stolen cattle, and especially said 12 head, were thus branded before they were stolen.

Appellant was also' at said time a cattleman, and had been for many years. He then lived on a section of land he ownd near the center of Collingsworth county, and had several small pastures or ranches in said county, and also one in Oklahoma. Where he lived was about 30 miles from Davis Bros.’ Wheeler county ranch. There were many fences of others between them, and no direct road from one to the other place. In February or March, 1913, appellant leased from Mr. Mc-Claskey a pasture, telling him at the time he wanted to put about 45 head therein. About May 5, 1913, as soon as McClaskey could get this pasture ready, appellant did put 45 head of cattle therein, including the said 12 head described in the indictment. This McClaskey pasture was quite secluded, rough, and had deep canyons in it. It was fully a mile from any public road. The grass therein seems to have been in the canyons. McClaskey, appellant’s witness, said the grass would spring up in the spring earlier in the canyons than on top, and the cattle would most likely be in the canyons then. He also said there were some private roads running through his place used by fishermen and. hunters and by persons from a certain neighborhood when the river -was up, and “cattle riglit down in the canyons cannot be seen from any point on the road that goes through there.” The only running water for cattle in that pasture was in the canyons. He also said when appellant put these cattle in his pasture he also sent another hunch down to a ranch at Tex-ola.

In hunting for their 60 head of stolen cattle, E. T. Davis, in the spring and summer of 1913, went into appellant’s pasture, hut found none of them then therein. He, however, in the summer of 1913, did find said 12 head in said McClaskey pasture. He and many other witnesses clearly showed that said Davis Bros.’ said brands were on said cattle, but had been burned over, and the figure “2” had been changed to what the witnesses call a “balloon bar,” or “O bar.” That this was done by attempting to burn over the whole figure “2” so as to make the upper part an “O” and the lower part a bar thereunder. And the two stripes on the right leg had been burned over so as to make what the witnesses call a “lazy H.” On one or two of the cows the “2” had been burned over and made the figure “8.” These facts were thoroughly established by many witnesses, and in no way disputed. Besides, Davis Bros., by themselves and at least two other witnesses, clearly identified from 3 to 5 head of these cattle as theirs by fleshmarks, and as that many of their 60 head of stolen -cattle. Davis then went to appellant, told him of finding and identifying said 12 head, and about how the brands had been burned. Appellant, Mooney, then told Davis he had bought said cattle from a man by the name of Jackson; that he had bought 60 head from Jackson. Davis told him he wanted the cattle and the man who burned them, and asked him if he could get hold of Jackson. Mooney “said he could. He said he lived right off down there, and pointed east in the direction of Oklahoma.” He asked Mooney where the balance of the 60 head were. “He said the remainder of them were up on Sweetwater, in Oklahoma.” Mooney then had a ranch on Sweet-water, in Oklahoma. At this time, when Davis told Mooney the brands of the cattle had been burned, Mooney said, “They looked like burned cattle to him.” Mooney never produced said man Jackson — if there was such man — at any time, and the record in no way shows he ever attempted or tried to do so. Soon after this, Davis went to Mooney’s Sweetwater ranch and searched for the remainder of the 60 head, but Mooney had preceded him there, and Davis then found none of them there. Mooney afterwards claimed to Davis he had bought only 30 head from Jackson. He also later told him that Jackson lived in Childress county, which was in a different direction from where he at first told and pointed out to Davis where he lived.

Mooney refused to deliver said 12 head to Davis. Thereupon said Davis Bros, sued him in the federal court at Amarillo for, and sequestrated, them. In the trial of that civil case Mooney took the stand and testified for himself. Davis testified herein that on that civil trial, on cross-examination, Mooney swore “he knew that they were our cattle, and he put them down in the McClaskey pasture for the purpose of keeping them out of the way for fear we would claim them. He said they looked like the brands were burned to him. He said he cut those particular cattle out to put them in this particular pasture — McClaskey pasture.” Mooney, nor his attorneys could have been surprised at this testimony by Mr. Davis, for Davis so testified on the trial of Mooney for this same offense on the previous trial, and, if it had not been true, he could have so shown by the court stenographer, the judge, lawyers, and jurors of said federal court.

Mooney claimed he had bought said 60, or 30, or 12 head, as the case may be, from Jackson, and at times he claimed he only paid two horses and four mules for them. Soon after he was arrested and made bond for this offense in said first case, in the summer of 1913, he had a deliberate talk with Mr. Salmons about these cattle Davis was claiming. Salmons swore he said he had bought them. “I asked him who he bought them from, and he said a man by the name of Jackson. I asked him what Mr. Jackson’s initials was or name. He said: T don’t know. I gave him a check for them, and the check will show the initials.’ ” He said he gave $23.S0 per head for the cattle. He did not tell Salmons where Jackson lived, nor how many cattle he bought from him, nor what else other than the check he gave for them.

No such check was produced on the trial, nor any explanation made why it was not.

Mr. Albert Walker lived about 12 miles from said McClaskey pasture, not far off the line of road from that pasture to said Davis ranch in Wheeler county. He knew the brand of Davis Bros. About the last of February or 1st of March, 1913, he saw in his stalk field a cow and heifer belonging to said Davis Bros. The figure 2 on the cow had been burned into the figure 8, and on the heifer it had been burned into said balloon bar brand. These burned brands were then fresh. When Davis found said 12 head in the McClaskey pasture, Mr. Walker went down there with others to examine them and the brand, and identified said cow and heifer, which had been in his stalkfield, as two of the 12. Walker did not know how they got from his field to said pasture. Walker’s evidence was in no way disputed.

In his first trial for this offense Mr. Mooney did not claim insanity as a defense, and introduced no evidence whatever on that subject. That is shown in this case on this trial. On this trial, it is true, he pleaded not guilty, which would, of course, compel the state to prove his guilt beyond a reasonable doubt, but bis only defense was insanity. His defense was submitted in a proper charge which, was prepared by his own able attorneys, and the jury told if he was insane, or they had a reasonable doubt of it, to acquit him. The jury found 'against him. They could not properly have done otherwise, under the evidence. They assessed the lowest punishment authorized by law.

Omitting the usual heading and the signature of the attorneys and Judge, we will quote appellant’s sixteenth bill of exceptions in full. It is:

“While Newt. Willis, counsel for the state, was opening the case in behalf of the state, he used the following language in referring to defendant: ‘The story of .the thievery of which the defendant is the head rivals the stories of Robin Ilood of ancient days. He is the captain of cow thieves, and is at the head of an underground system leading from Davis Bros.’ pasture in Wheeler county down through Collingsworth county, terminating in defendant’s pasture, where these cattle were found. This system of cattle stealing must be broken up.’ To which remarks of counsel defendant duly excepted, because the defendant was not being prosecuted for stealing cattle, and the argument was prejudicial, and the language unwarranted by any testimony in the case, and was abusive, and held defendant up in an unfair and unjust light before the jury, and request that the same be withdrawn from the jury. Which objections were by the court overruled. To which ruling and action of the court defendant then and there in open court duly excepted, and here now tenders his bill of exception No. 16, and asks that the same be examined, approved, and ordered filed as part of the record in this case.”

The judge approved it with this qualification:

“No request was ever made on behalf of the defendant, either oral or written, that the court instruct the jury not to consider said remarks of counsel.”

Below the judge’s official signature is this, signed by appellant’s attorneys:

“Defendant refuses to accept the qualifications as made for the reason that both the objection was made and the request to withdraw from the jury.”

We cannot consider the attorneys’ statement for any purpose, but, as the matter appears, we, as well as they, are bound by the judge’s qualification. If they, and not the judge, were correct on the ijoint, they should have procured a bystanders’ bill properly sworn to as prescribed by the statute and decisions. Not having done so, we must and do conclude the judge was correct.

We regard, the matter, however, as unimportant, for it is certain that they requested no written charge. Charges by the judge and of attorneys too, when given, must be in writing.

Besides the able oral argument, and the first elaborate brief filed, when this case was submitted, at the instance of both sides, we gave additional time for them to brief and argue the one question presented by this bill. Both sides did so, and then still additional time was given appellant to reply to the state’s brief. So that we have three very able, earnest, and lengthy briefs on this question alone, to which we have given careful consideration.

Among other contentions, appellant claims that the remarks of Mr. Willis “was mere testimony given by counsel relating to facts of the most incriminating and prejudicial character,” and in effect caused the jury to find him guilty.

In,selecting juries the law (R. S. 5126) requires the commissioners to swear they will not knowingly select any man as a juror whom they believe to be unfit and not qualified, but are required to select persons free from all legal exceptions, of good moral character, of sound judgment, well informed, and who are able to read and write (R. S. art. 5135). When the commissioners have failed to select a sufficient number, and it becomes necessary for the sheriff to summon talesmen, the law requires, and he swears, he will select none but impartial, sensible, and sober men. R. S. 5170. Each juror.who serves in a criminal case solemnly swears that he will a true verdict render according to the law and the evidence. There is no intimation in this record that all these matters were not fully and completely carried out. The jurors in this case had absolute knowledge that Mr. Willis was not a witness and did not pretend to testify as a witness to any fact whatever in this case or in connection with it; that what he said was his mere speech and argument to them as an-attorney and not otherwise. The witnesses — those who did testify —the jurors saw and knew were sworn in their presence to testify the truth, the whole truth and nothing but the truth. And they were successively called by the attorneys for the one side or the other and placed upon the witness stand and were asked questions bythe respective attorneys and gave answers thereto as witnesses. The jurors also knew and had absolute knowledge that Mr. Willis sat before them as an attorney for the state with others and at no time gave any testimony whatever as a witness, but must have participated in the examination of the witnesses who did testify on the stand, and they, nor either of them, could have been misled, nor could they for one moment imagine that Mr. Willis’ speech was evidence in the case. The trial must have lasted for more than one day and perhaps as much as two full days. The statement of facts shows that 11 witnesses testified in behalf of the state and 5 for appellant. It took 63 typewritten pages to transcribe their testimony in narrative form, as shown by the statement of facts. The said language of Mr. Willis complained of is less than 7 typewritten lines. According to appellant’s contention, he would have this court reverse this case because of the utterance of this language 'by Mr. Willis, notwithstanding the real facts and evidence in this case, which are in no way impeached or disputed, establishes,, beyond the shadow of a doubt, appellant’s guilt of the crime with which he was charged aud convicted, and, too, notwithstanding the remarks of Mr. Willis could in no event have affected the jury as against appellant’s sole defense of insanity, and notwithstanding, too, that the verdict of the jury assessed the lowest penalty authorized by law.

The rules have been so long and so well established by the law applicable to this question that it would seem useless to here again state them; but, in view of appellant’s urgent and vigorous insistence, we will again state some of them and cite some of the authorities.

Bass v. State, 16 Tex. App. 69, was a rape ease with the death penalty assessed, and the case affirmed. This court, through Judge Hurt, said the argument for the state complained of “was not proper,” and “suppose we concede that the counsel for the state assumed as a fact and commented upon such fact, which was not in proof, this court would not reverse the judgment, unless such conduct was very clearly calculated to prejudice the rights of defendant. To reverse in all cases in which counsel did not confine themselves to the record would render trials farces. In fact, rare would be the case in which such irregularities would not occur.”

Pierson v. State, 18 Tex. App. 524, was a murder case, in which a verdict assessing penitentiary confinement for 30 years was affirmed. There seems to have been two bills to remarks in argument by the district attorney, or two distinct such remarks, objected to. The record does not disclose what the first was, but as to that the trial judge told the jury to pay no attention to it. However, as to those remarks this court (18 Tex. App. 563) said:

“AVe see nothing materially improper in the district attorney’s remarks.”

As to the other remarks this court (18 Tex. App. 564) said:

“AVe can perceive no impropriety in them. It was the duty of the district attorney, if he thought the evidence established the guilt of the defendant, to demand his conviction. He demanded a conviction in the name of the state, in the name of law, justice, and right, in the name of society, in the name of the widow and •children of the deceased. AVe see nothing wrong in this. If the defendant committed the murder, he had acted against the peace and dignity of the state; he had outraged law, justice, right, and society; he had clothed the wife in widow’s weeds, and had made fatherless the children of the deceased; and each and all of these consequences of his crime demanded his conviction and punishment. It has become quite common to except to the remarks of counsel for the state in their addresses to the jury. AVe find such exceptions in the majority of contested cases that come before us. If we had sustained all these exceptions, the effect would have been to have virtually closed the mouths of prosecuting attorneys. AVhile argument should be restricted legitimately, it should not be so unreasonably limited as to render it ineffectual. The state has rights in this respect as well as defendants. And, in view of the frequency of exceptions of this character, we will take occasion here to say that, before we will reverse a conviction because of remarks of prosecuting counsel, it must clearly appear to us: (1) That the remarks were improper; and (2) that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.”

Tweedle v. State, 29 Tex. App. 586, 16 S. W. 544, was a murder case, where all three defendants were convicted, 30 years in the penitentiary was assessed against two of them, W. H. and George Tweedle, and 25 years against the other, Martin, a little negro boy. The judgment was affirmed as to both Tweedles, but reversed as to the negro boy solely because the evidence was insufficient to show his guilt. Appellants objected to this language (page 591 of 29 Tex. App., page 545 of 16 S. W.):

“A man could breathe slander and circulate slanderous reports against a woman, but he was not half as bad as the man that whipped his wife”

■ — used by the district attorney in his opening argument. This court, through Judge Davidson, said:

“Concede that this argument was improper, it does not follow that the judgment should be reversed for this cause. The remarks must not only be improper, but they must be of such a nature as would be clearly calculated to prejudice. the rights of the defendants. To reverse in all cases where counsel fail to confine themselves to the record would render trials farces. There is hardly a case of any importance tried but that during the progress of the trial some unguarded expression is used by counsel upon either side. It would be a remarkable coincidence if this were not true. House v. State, 19 Tex. App. 227; Bass. v. State, 16 Tex. App. 62.”

In this Tweedle Case Judge Davidson further states: That appellants also complained of this argument by the district attorney:

“AVhy did not these defendants at the examining trial offer the same evidence in extenuation as they do now?”

That nearly all defendants’ witnesses attended the examining trial, but none of them testified. They did on final trial. That the Tweedles on the night and day subsequent to the killing made statements of the manner and cause of the killing antagonistic to their evidence on the final trial. To the sheriff they stated deceased came upon them armed and tried to kill them. On the final trial they testified they killed deceased because he had used insulting language concerning Mrs. Tweedle and had been guilty of other insulting conduct towards her. Judge Davidson says:

“The remark of the district attorney was a legitimate criticism upon the failure of the defendants to offer in evidence at the examining trial the conduct of the deceased toward Mrs. Tweedle, which was the principal defense on the final trial.”

In House v. State, 19 Tex. App. 227, House was prosecuted and convicted of cattle theft, and his punishment assessed at penitentiary confinement. Evidence was introduced that the brands of the alleged stolen cattle had been burned. House had three bills, 7, 8, and 9, to statements of the district attorney in argument to the jury.

In tlie seventh this was the language:

“Gentlemen: Myself and the county attorney, Mi\ Atkinson, have been attacked for our mode of prosecution. There is this difference between the prosecution and the defense: The counsel for the defense in this case are representing renegades, thieves, murderers, and cutthroats.”

In approving this bill the trial judge stated:

“The counsel for the defendant had, in their remarks, been very severe upon the state’s counsel, and in the opinion of the court the remarks of the district attorney were intended to refer to defendants generally and the class of clients on the criminal docket of the court.”

The language in the eighth was:

“The state of Texas might be raked over with a fine-toothed comb, and a more notorious character than the defendant John House could nowhere be found.”

The trial judge made no qualification of this bill.

The language in the ninth was:

“And the district attorney then stated further that no doubt the object of the defendant was to get the cattle back in his range, and then gather around him the thieves, cutthroats, and robbers with whom he associated, and defy the officers of the law when they attempted to take the stolen property from him; that the defendant would steal his neighbors’ cattle and then gather around him cutthroats, thieves, and robbers and defy the law.”-

As to this the trial judge said:

“ ‘The court is of the opinion that the remarks of the district attorney were intended as explaining or as drawing his conclusions from the evidence that the defendant had said if he could got the cattle back from Trammel, by d-n, he would like to see anybody take them from him,’ etc.”

In this bill House complained of this language also of the district attorney:

“Who is this Reinhardt Schneider that you have heard of in this case? He is a refugee from justice, and I might suppose that there is an oath of the defendant on file in this case in which he swears he wants a continuance to prove that he bought these stolen cattle from Reinhardt Schneider.”

When appellant objected to this last—

“the court directed the district attorney to confine himself to the evidence in the case, when he further remarked to the jury: ‘I did not say there was any affidavit on file. I only said I am going to suppose the fact. I do this to show what character of men are the associates of the defendant. I have proved by Gant. Jones, the sheriff of your county, that Reinhardt Schneider is a refugee from justice.’ ”

To this latter appellant again objected.

The report of this House Case clearly shows the trial judge in no way withdrew any of said statements from the jury but expressly let them all stand. Appellant therein contended vigorously this court should reverse because of each and all of said matters. But this court said:

“The most objectionable of which perhaps was that ‘the state of Texas might be raked over with a fine-tooth comb, and a more notorious character than the defendant John .House could nowhere be found.’ The objection to this remark, as stated in the bill, is that defendant’s character had not been put in issue by himself. Still, the charge against him and evidence which had been adduced to support it, were in their nature likely to reflect somewhat unfavorably upon his character, even if they did not put its notoriety throughout the state in issue. We construe the remark to be not so much evidence of a- desire to make use of foreign matter to the injury and prejudice of defendant as an impassioned expression, highly exaggerated it may be, but springing inadvertently from the heat of debate. If all such remarks were held reversible error, but few convictions would stand the test where the case had been hotly contested by able and zealous counsel in the courts below. The remarks set out specifically in the ninth bill of exceptions are rather deductions and arguments upon the evidence than mere opinions or independent statements by the district attorney. We cannot say they were entirely unwarranted by the evidence.”

And the opinion cites and quotes as the-law the Pierson Case, supra. A very large number of cases, even down to this very date, could be cited, citing and approving these cases and rules, but we deem it unnecessary to do so.

By many other decisions of this court this further rule is also well established: When an objectional statement is made in argument not authorized by the evidence, nor a deduction therefrom, merely objecting thereto will not present reversible error. In order to do so, the party must also request in writing a charge requiring the jury to disregard it. Hatchell v. State, 47 Tex. Cr. R. 385, 84 S. W. 234; Fielder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Kennedy v. State, 19 Tex. App. 634; Young v. State, 19 Tex. App. 543; Lancaster v. State, 36 Tex. Cr. R. 20, 35 S. W. 165; Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Rahm v. State, 30 Tex. App. 313, 17 S. W. 416, 28 Am. St. Rep. 911; Garello v. State, 31 Tex. Cr. R. 61, 20 S. W. 179; Vann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004; Franklin v. State, 38 Tex. Cr. R. 347, 43 S. W. 85; Clayton v. State, 149 S. W. 122.

Mr. Branch in his Criminal Law, § 62, p. 32, states another rule:

“Unless the remarks of counsel are obviously of a nature to impair the rights of defendant, or prejudice his case before the jury, such remarks, though improper, will not be considered for reversal, unless a charge was asked and refused and exception reserved. Kennedy v. State, 19 Tex. App. 634; Young v. State, 19 Tex. App. 543; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Lancaster v. State, 36 Tex. Cr. R. 16, 35 S. W. 165; Dies v. State, 56 Tex. Cr. R. 36, 117 S. W. 979; Mason v. State, 15 Tex. App. 549; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Rahm v. State, 30 Tex. App. 313, 17 S. W. 416, 28 Am. St. Rep. 911; Hatchell v. State, 47 Tex. Cr. R. 385, 84 S. W. 234; Garello v. State, 31 Tex. Cr. R. 61, 20 S. W. 179; Vann v. State, 48 Tex. Cr. R. 15, 85 S. W. 1064; Wright v. State, 37 Tex. Cr. R. 146, 38 S. W. 1004; Franklin v. State, 38 Tex. Cr. R. 347, 43 S. W. 85.”

It is true this court has reversed some cases where even such charge was given. But they are exceptions, not a rule. Appellant cites some of them. Each case in this respect must rest on its own facts.

We will give a condensed statement of what the uncontradicted evidence establishes: (1) Davis Bros, were the owners of the alleged 12 head of stolen cattle. (2) Said 12 head and others, to the number of 60, were stolen from them in Wheeler county. (3) These 12 head, if not all the 60, were taken from Wheeler county when stolen, and delivered to appellant in Collings-worth county. (4) He knew they belonged to said Davis Bros., and had been stolen from them, (o) He knew the Davis Bros.’ brand on them had been burned, or he himself then burned and changed said brand. (6) He not only received these cattle with all this knowledge, but he also concealed them to keep said Davises from finding and getting them. (7) The McClaskey pasture where he concealed them was secluded, broken, rough, and had deep canyons in it. The cattle grazed and watered in these canyon and could not be seen from any other point. It was in Collingsworth county about 30 miles from said Davis ranch, in Wheeler county. (8) Appellant’s only defense on this trial was insanity. He made no such defense on his first trial. (9) The lowest penalty was assessed against him.

Now let us consider Mr. Willis’ speech. He said:

“The story of thievery, of which this defendant is the head, rivals the stories of Robin Hood of ancient days.”

Unquestionably this record establishes a “story of thievery.” It is true Mr. Mooney was not charged with theft. But in order to convict him, as charged, with “receiving and concealing” the stolen cattle, it was necessary to establish the theft and to show he knew they were stolen. So that he must have known and dealt with the thief, and we think it not inappropriate that he be designated “the head” of the thievery. The statement it “rivaled the Robin Hood stories” could not be material nor harmful. Nor can we see but that the statement, “he is the captain of cow thieves,” could well be said from the facts and inferences therefrom. He knowingly dealt with a cow thief when he bought these stolen cattle. This cow thief could not thrive without having some one as the head or captain to buy the stolen cattle from him and conceal them, and it is no stretch to call him “the captain.” The fanciful statement, “he is at the head of an underground system from Davis Bros.’ pasture in Wheeler county down through Collingsworth county, teminat-ing in defendant’s pasture, where these cattle were found,” might well be drawn from the facts of this case. As stated, the thief who stole these cattle might be said to have had appellant “at the head” — some one who would help him by buying and concealing the stolen cattle — and appellant proved to be that one. Evidently the “underground system” had reference to the deep underground canyons wherein appellant had concealed these cattle, and unqriestionably they had been taken from Davis Bros.’ pasture in Wheeler county to appellant’s said pasture in Collingsworth county, where they were actually found.

Surely no one ought or could properly object to the statement, “this cattle stealing must be broken up,” whether it correctly or incorrectly be designated “system.” But concede that each and all of the statements of Mr. Willis were wrong, and that the evidence furnished no basis therefor, still the language under the circumstances of this case, and the verdict of the jury, should not and ought not to result in a reversal. They were not of such a material nature as to impair his rights nor prejudice him, or his case, before the jury; nor did they do so. Nor were they “of such a grave character as to render it obviously injurious” to him, which would or could justify this court to reverse this case.

There was no material error committed in the trial of this case, and it should be affirmed ; and it is so ordered.

On Motion for Rehearing.

Everything made a ground for rehearing herein was thoroughly considered before the original opinion was handed down. Appellant, in effect, concedes this and that he can add nothing to what was urged before. It is altogether unnecessary to take up any of these matters and discuss them again. They were correctly disposed of in the original opinion.

There is a matter, however, called to our attention, which, in justice to appellant’s attorneys and ourselves, we desire to correct. In the original opinion we stated, in effect, that there was a document in the record signed by appellant’s attorneys as objections to the court’s charge, and as to this we stated:

“This document does not show to have ever been presented to or acted upon by the judge, for the judge makes no noting thereon that it was ever presented to or acted upon by him. Nor does the record show any bill of exceptions by appellant to the court’s refusal or failure to consider or' comply with any of his said objections.”

The record is quite voluminous. Evidently in dictating the opinion, we had before us the said document, as copied on pages 39 to 44, inclusive, of the record, and what is failed to be shown there is correctly stated by us. However, appellant in his motion for rehearing calls our attention to the fact that on pages 120 to 126, inclusive, said document is copied in his bill No. 2, with the proper heading, stating it was presented to the judge prior to the time he read his charge to the jury. It is further stated therein the judge “thereupon corrected his charge in part, but refused to conform same to the said objection as made,” and ordered said objections filed as a part of the record, to which he excepted, etc. The judge approved and ordered s/iid bill filed, and signed his name thereto officially. This bill was overlooked by us in the connection when we stated what we did about the document, as shown on pages 39 to 44. We make this correction cheerfully, because otherwise it might have a tendency to show that appellant’s attorneys in the trial court had omitted a material matter. Every one who knows them, and this court especially, knows that they are diligent in representing their clients and in taking every precaution to correctly preserve and present whatever errors they think are committed in the trial court. We regret that we failed to call attention to this in the original opinion.

It will be noticed, however, that we fully considered every objection that was made to the court’s charge and every special charge requested by appellant which was refused, as shown in the original opinion.

The motion for rehearing is overruled. 
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