
    WEBB v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.)
    1. Larceny (§ 45) — Evidence—Identity or Property.
    In a prosecution of L. W. for stealing a yearling, testimony of W. W. that, after the date alleged in the indictment, he bought a yearling about the same size and color of the yearling alleged to have been stolen, was admissible, where the state sought to show that the yearling bought by the witness was the one defendant claimed to have raised and the one that he wanted the prosecuting witness to look at.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 135, 136; Dee. Dig. § 45.]
    2. Criminal Law (§ 829) — Instructions— Bequests — Mattees Coveeed by Charge.
    In a prosecution for stealing one head of cattle, a requested instruction by defendant that if the jury believed from the evidence that the one head of cattle described in the indictment had been stolen, and that recently thereafter defendant was found in possession, and on being questioned made an explanation of how he came by it, and the jury believed such explanation was reasonable and probably true and accounted for the possession in a manner consistent with innocence, they would acquit defendant, was sufficiently covered by an instruction that if the jury found that the one head of cattle sold by defendant was not the property of the person from whom it was alleged the animal was stolen, or if the jury had a reasonable doubt as to whether it belonged to that person they would acquit the defendant, and if they found that the animal was the property of that person, yet if they found that when defendant took possession of it he did so under the honest belief that it was his, or if the jury had a reasonable doubt as to whether he so believed, they would acquit defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    3. CRIMINAL Law (§ 854) —Trial—Separation op Juey.
    Where the jury in a criminal prosecution, after retiring to consider of their verdict, informed the court that they wished to have a portion of the testimony reproduced, and the court ordered them to be brought into open court, and after they returned to the courtroom the sheriff discovered that only 11 jurors were present, and within five minutes the sheriff was sent to the jury room after the other juror, and the other juror was found in the jury room, and no one was with either him or the other 11 but the sheriff, and no one spoke to any of them, there was no error in the alleged separation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2039-2047; Dec. Dig. § 854.]
    4. Criminal Law (§ 687) — Trial—Beopen-ing Case to Beceive Evidence.
    Under a statute which provides that evidence may be introduced where it is necessary to the administration of the law at any time before the argument is closed, it is not error to allow the prosecution to recall a witness, although the counsel for defendant had closed his argument and the state had made its opening argument and the leading counsel for defendant had left town, where it is not ’shown that the remaining counsel were not fully capable of cross-examining the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1621, 1622, 1625; Dec. Dig. § 687.]
    5. Criminal Law (§ 858) — Trial—Taking Documents to Jury Boom.
    It is not error to allow the jury in a criminal ease to take with them to the jury room a piece of paper containing the signature of one of the witnesses and a tax rendition containing an alleged signature of the witness; the papers being taken for the purpose of comparison.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2056-2059, 2062; Dec. Dig. § 858.] '
    Appeal from District Court, Smith County; B. W. Simpson, Judge.
    Lem Webb was convicted of theft, and appeals.
    Affirmed.
    O. E. Lane, Asst. Atty.' Gen., for the State.
    
      
      For ottier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This is a cattle theft conviction. [1] The first bill of exceptions recites that the state introduced the following testimony: William Webb, on cross-examination by the state, testified, over the objection of the defendant, that, “during last fall, after tlie date alleged in the indictment, and after the indictment had been filed in the court, he bought a yearling, about the same size and color of the yearling alleged to have been stolen, from Henry Stokely, paying him' $20 for it, and bringing it over to his farm.” The objections urged were that it was not shown that the yearling, defendant claims to have now, was the yearling that William Webb bought from Henry Stokely, nor had the state connected defendant with this transaction. The court qualified it by stating: “The state sought to show, and there was evidence tending to show, that the yearling bought by Wm. Webb was the yearling the defendant claimed to have raised and that he wanted prosecuting witness to look at.” By reference to the statement of facts, it might be discovered that the yearling was bought after the alleged theft and after indictment found, and the evidence might show there was another yearling of the same kind thereafter in possession of the parties. We do not think there is any merit in the bill as it is presented.

The next bill recites that defendant presented the following instruction, which was refused: “You are charged that if you believe from the evidence that the one head of cattle described in the indictment had been stolen from Jack Gatlin, and that recently thereafter the defendant was found in possession thereof, and when his possession was' first questioned he made an explanation of how he came by it, and that you believe that such explanation is reasonable and probably true, and accounted for the defendant’s possession in a manner consistent with his innocence, then you will consider such explanation as true and acquit the defendant.” The court sufficiently charged this phase of the law and covered all that character of evidence, when he instructed the jury as follows: “If you shall find that the one head of cattle sold by defendant to the witness Louis Bell was not the property of Jack Gat-lin, or if you have a reasonable doubt as to whether the one head of cattle was owned by Jack Gatlin, you will acquit the defendant. If you shall find that the one head of cattle sold to Bell was the property of Jack Gatlin, yet if you shall find that, when defendant took possession of the one head of cattle, he did so under the honest belief that it was his yearling, or if you have a reasonable doubt as to whether he so 'believed, you will acquit the defendant.” The theory of the defendant, or rather his statement when charged with the theft of the animal—and the evidence on the trial was to the same effect—was that at the time he got the animal he thought it was his and got it through ■a mistake, and that two or three days afterward he discovered that it belonged to Gat-lin. This presents the defendant’s theory of it, and, we think, sufficiently. In fact, this court in a number of cases has suggested it to be a better and safer rule to charge the jury directly on whatever account is given by the defendant, in cases of this sort, instead of giving the other form of reasonable explanation; that is, if the theory of the defendant was that he bought the animal, to charge the jury directly that if they should so find, or had a reasonable doubt, to acquit him, or if he took it through mistake, and they should so find or have a reasonable doubt of that fact, to acquit. Or if he took it under any theory of honesty, whatever that theory was, to so charge the jury directly, and also give the defendant the benefit of the reasonable doubt in connection with it. We think the court’s charge properly submitted the matter.

Another bill of exceptions recites that after the jury heard the evidence, argument of counsel, and received the charge of the court, they retired to consider of their verdict, and later, and before a verdict had been agreed upon, 11 members of the jury appeared in the district courtroom where court was in session, but one of the jurors was not present when the 11 other members made their appearance; that the 11 members were in the courtroom five or ten minutes before his absence was known; and that after a search the deputy sheriff found the juror in the third story of the courthouse, above the courtroom, in a separate room from the said courtroom, and the juror was asleep, and by this means the jury were permitted to separate, there being people passing between the said jury and the absent member. This is signed with the statement by the trial judge that the jury made known to the court, through the deputy sheriff who was guarding them, that they wanted a portion of the testimony reproduced, whereupon the court decided that they be brought into open court,' and after 11 had come into the room, while the stenographer was looking for that portion of the testimony desired, the sheriff called the court’s attention to the fact that only 11 jurors were present; that this was-only a short time after the jury came in, from three to five minutes; that the sheriff was at once sent to the jury room after the other juror, who was in the jury room; no one else was in the room; that the jury room in the new courthouse at Tyler is just over to the rear of the judge’s stand, extended above by a stairway ascending at the rear of the judge’s stand; that no one was with the 11 jurors but the sheriff, and no one was with the juror left in the room, and no one spoke to either the 11 or the 1, during the brief period. As this bill is explained by the judge by his qualification, and the bill was so accepted. There is no error in the alleged separation.

Another bill recites that Jack Gatlin was permitted to be recalled by the state over appellant’s objection on the morning of September 25, 1912, after tbe testimony bad been closed on tbe nigbt of September 24, 1912, and after all of tbe witnesses bad been excused, and after tbe state bad made its opening argument and tbe defendant bad closed bis argument, and tbe defendant’s leading counsel, wbo was most familiar with tbe facts in said case, bad been called out of town, and permitted in tbe presence of tbe jury to write bis name on a piece of paper for tbe purpose of comparing it with bis alleged signature to a tax rendition, and.introduced tbe signature tbus written in evidence ; and wbicb testimony was objected to because tbe testimony bad been closed on tbe nigbt before, and all tbe witnesses bad been excused, and that it would result in reopening tbe case and bringing tbe other witnesses back to testify regarding tbe said signature, 'because tbe state bad made its • opening argument and tbe defendant bad closed bis argument, and tbe leading counsel, wbo bad conducted tbe examination of witnesses, having made tbe closing argument for defendant, bad left town and would not have opportunity to cross-examine said witness. Tbe court qualifies this bill as follows: “Defendant was represented in court by tbe firm of Hanson & Butler and B. H. 0. Butler; tbe latter being counsel referred to' as having left town for bis home some 10 miles in tbe country. When tbe state introduced this evidence, tbe court offered counsel for defendant there in court an opportunity to rebut same and make another argument to the jury before tbe district attorney closed tbe argument for tbe state.” Tbe statute provides that evidence may be introduced, where it is necessary to tbe administration of tbe law, at any time before the argument is closed. Tbe objections here do not go to tbe testimony itself, but because of tbe fact that tbe arguments, except the closing argument by the state, bad been closed, and tbe leading counsel had left town. There is no merit in these matters. There is nothing to show that tbe remaining counsel were not fully capable of cross-examining tbe witness about his signature. They bad ample opportunity offered them, either to. examine tbe witness or introduce testimony, or to be heard again in an argument before tbe jury.

Another bill recites that the jury were permitted to carry the tax rendition with them, when they went out to deliberate upon their verdict, and tbe piece of paper containing tbe signature of Jack Gatlin. This was objected to because it was not such evidence as they were entitled to carry with them into tbe jury room. Tbe court overruled this, and this same bill is qualified as follows: “Tbe tax rendition above referred to was introduced in evidence, tbe paper with tbe signature written, and these papers were exhibited to tbe jury and carried by them to tbe jury room in their deliberations.” As tbe matter is presented, we are of opinion there is no error shown. What tbe purpose of this testimony was is not clear, nor does tbe bill of exception undertake to show bow it could have been injurious, or even tbe effect of tbe testimony one way or tbe other, or what effect it could have by being carried into tbe jury room. In fact, the bill is so indefinite that we are unable to see bow it could have affected tbe case, especially injuriously to appellant’s cause.

Finding no reversible error in tbe record, tbe judgment is ordered to be affirmed.  