
    SWAFFORD v. STATE.
    (No. 3340.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    1. Criminal Law (§ 359) — Evidence—Relevancy — Admission or Other Evidence by Adverse Party.
    Where, in a prosecution for cattle theft, defendant claimed he had bought the animal from N., and on a former trial prove'd by G. that N. had sought to bribe M. to testify that defendant had admitted to him that he had stolen the animal. but on the trial in question G. testified for the state that his former testimony was un-time, and that he in fact, representing himself as N., went with defendant’s brother to M. and sought to bribe Mm to testify that defendant had told him he had stolen the steer, the court properly permitted the state to prove by N. that he in fact never went to M.’s house or made any such proposition to him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 789, 790; Dec. Dig. § 359.]
    2. Criminal Law (§ 1170%) — Appeal—Prejudice.
    Where, in a prosecution for cattle theft, one jointly indicted turned state’s evidence, and the case was dismissed against him. and defendant proved that such codefendant’s reputation was bad, he was not prejudiced by a question on cross-examination as to why, under such circumstances, he associated with the codefend-ant, to which he answered that the latter wanted to buy beef, and that he would as soon sell to him as any one.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    3. Criminal Law (§ 728) — Trial—Instructions.
    Where no objection was made to questions asked by the county attorney during the trial, the court did not err in refusing a special charge that the jury should not consider the questions as any evidence of defendant’s guilt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 16S9-1691; Dec. Dig. § 728.’--]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Eulis Swafford was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of cattle theft, and assessed the lowest punishment.

There is much conflict in the testimony. That of the state, and the state’s theory of the case, is amply sufficient to show that appellant and one Luther Simpson stole a steer at night, drove it several miles from the pasture out of which they took it, and killed and slaughtered it in an out of the way place. Appellant’s defense was that he bought the steer from the young 17 year old son, Roy Naney, of J. M. Naney, the owner. This was the main issue. Appellant introduced sufficient evidence, if believed, to have established his defense. On the contrary, the state introduced ample evidence to the reverse effect. . ,

The court’s charge, in addition to requiring the jury to believe beyond a reasonable doubt all the requisites that the appellant stole the steer, as alleged, before they could convict him, in a separate paragraph told the jury:

“If you believe that defendant bought the animal in question from Roy Naney, or if you have a reasonable doubt thereof, you will acquit the defendant.”

In addition to this, he charged that the burden of proof was on the state, that defendant was presumed to be innocent until his guilt was established beyond a reasonable doubt, and in case they had a reasonable doubt as to biis guilt to acquit Mm, and also told .them that .they were the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony.

tThe state, over appellant’s objection, was permitted to have Curtis Gorman, one of its witnesses, testify in substance that at appellant’s instance and solicitation he went to the home of Mat Manuel with Bill Swaf-ford, appellant’s brother, and represented that he (Gorman) was Roy Naney, and offered Manuel $50 to swear that appellant had told him that he (appellant) stole the alleged stolen animal; that he did do this, as requested by appellant, and reported to appellant that Manuel refused to so swear; that appellant was to pay him (Gorman) whatever it was worth for doing what he did. Over his objections, the state was also permitted to prove by Roy Naney that he did not go to said Manuel’s home with Curtis Gorman and offer Manuel $60 to so testify. The court, in approving one of the bills, explained .the matter thus:

“In order that the court may understand the connection and the matter to which this bill refers, it is explained that at a trial of this case at a former term the witness Curtis Gor-man was placed upon the witness stand by the defendant, and at that time testified that he went to Mat Manuel’s house with Roy Naney, and heard Roy Naney tell Mat Manuel that he was Roy Naney, and would give him (Manuel)' $50 to testify that Swafford had admitted to him (Manuel) that he (Swafford) had stolen the steer. Upon the trial of the case at this time Gorman was placed upon the stand by the state, and he testified that he did not go to Mat Manuel’s house with Roy Naney, but in truth and in fact went with a brother of the defendant there at the defendant’s request, and represented himself to be Roy Naney. Under this state of the record the court believed it permissible for the state to put Roy Naney upon the stand to show that he in fact had never gone to Mat Manuel’s home and made any such proposition. The court believed that this was true, although upon the trial of the case at this time the defendant had Offered no testimony that Roy Naney had gone to the home of Mat Manuel.”

We take it from these bills that the appellant had sought by this evidence to show that Roy Naney, one of the state’s material witnesses, had tried to manufacture testimony against appellant, and that by showing this he would destroy the effect of Roy Naney’s testimony before the jury, and thereby lead them to believe that Roy Naney had really sold him the animal, or stolen it, and thereby secured his acquittal. It turned out that, instead of showing .that Roy Naney was seeking to manufacture testimony against appellant, appellant was seeking 'to manufacture testimony for himself and against Roy Naney. Under the circumstances, we .think the court committed no error in admitting the testimony objected to.

At the same, time appellant was indicted for this theft, the grand jury also indicted Uuther Simpson for .the theft. Simpson turned state’s evidence with the state’s consent, and the case was to be dismissed as to him; he testifying against appellant. Appellant proved by many witnesses that Simpson’s reputation was very had, but also showed that he had known him for several years. The appellant himself testified fully. On cross-examination, the state asked him if he did not know of the bad reputation of Simpson. He answered .that he had heard it was bad, but did not know. The state then asked him this question:

“Didn’t you know it was; heard people talking it, heard he was unworthy of belief, and so on? What did you want to get tangled up with him for, if he was that kind of a fellow ?”

To this latter question the appellant objected, on the sole ground that it was argumentative. He- answered the question:

“Simpson wanted to buy a beef, and I had one to sell, and would as soon sell to him as to any one.”

This shows no reversible error.

made no objection to the court’s charge, as this record shows. He asked this special charge:

“You are further charged that you must not consider as any evidence of guilt of defendant the insulting questions of the county attorney, such as ‘Don’t you know it is a he?’ ‘Why don’t you tell the truth?’ etc.”

Nothing in the record indicates when this charge was asked. No objection was made to such questions, if .they were asked, during the trial. The fact that he asked a charge on the subject, even if he had asked it in the time and manner required by law, would he no evidence that any such questions were asked. The record does not show that the charge was asked at such a time as to authorize this court to review it; but, if it did, the court’s refusal to give the charge shows no error.

In one ground of appellant’s motion for new trial it is set up that he had been indicted for the offense of subornation of perjury in connection with said Ourtis Gorman; that Gorman and other witnesses had gone before the grand jury long prior to that indictment, and it was not returned until June 26, 1914; ■that at the time he was out on bond in this case; that he was arrested on the subornation of perjury indictment on June 30.th, and placed in jail, a short time before Ms trial in this case, and not brought-into court or allowed to see his attorney until this case was called; that the state announced ready in this case, and he also; that he was not served with the indictment for subornation of perjury until convicted in this case; that he was not guilty of subornation of perjury, and with proper opportunity could have so proven; that after his conviction in this case he demanded trial on the other, and had his witnesses present and ready to prove that he was not guilty, when the county attorney with the consent of the court dismissed that case against him. To this ground of his motion he attached what purports to be a copy of the state’s motion to dismiss the subornation of perjury case against him. T5le ground of tire motion to dismiss that case is, in substance, that the state would have to depend upon the testimony of Curtis Gorman, who, in effect, had sworn both ways on the question, and the state was unable to corroborate Curtis Gorman; that the appellant had had him go to Mat Manuel’s house and attempt to bribe him to .testify, as shown above.

The state made a motion to strike out that paragraph of appellant’s amended motion for new trial, on the ground that it was immaterial, irrelevant, and incompetent, threw no light on this case or any feature of it, and only incumbered the record. He also alleged that the matters set out in that ground of the motion were untrue, and did not set out the facts therein referred to. We cannot tell, and the record does not disclose, whether the court heard evidence on this matter. At any rate, the court struck out that ground of the motion for new trial. As the matter is presented, we think it was insufficient to require the court below to grant him a new trial, and that therefore the court did not err in striking out that ground of his motion; at least, that it does not present reversible error.

The judgment is affirmed.  