
    STATON v. STATE.
    (No. 7077.)
    (Court of Criminal Appeals of Texas.
    Jan. 31, 1923.
    Rehearing Denied Feb. 28, 1923.)
    1. Grand jury <&wkey;5 — Grand juror not disqualified because he was joint owner of stolen property.
    A grand juror was' not disqualified to sit because he was joint owner of cattle alleged to have been stolen by one indicted under Vernon’s Ann. Code Cr. Proe. 1916, art. 413.
    2. Grand jury <&wkey;l8 — Time for challenge of grand juror.
    One indicted for theft of cattle owned by a grand juror cannot on tbe trial obtain permission to withdraw bis announcement because tbe grand juror owned the cattle, in the absence of a showing that be was not confined in jail’at the time tbe grand jury convened under Vernon's Ann. Code Cr. Proc. 1916, art. 409,-though tbe bill of exceptions states that “tbe facts are such that this defendant, or bis attorneys, bad no way or notice to take advantage of this procedure”; that is, of challenge in limine.
    3. Criminal law <@=406 (5) — Statement of accused held admissible in evidence.
    In prosecution for cattle theft,, it was proper to permit owner of animal killed to state that accused denied knowledge of the killing, though he afterwards admitted to such owner that he slaughtered the animal in question.
    4. Criminal law &wkey;4l7( 10) — Statement of another indicted for same offense held inadmissible.
    In a prosecution for cattle theft, evidence to prove that another, indicted for the same offense, had told witness that he was going to get into trouble, and if he did he was going to put it off on defendant, was inadmissible.
    5. Criminal law <&wkey;595 (2) — Refusal of continuance for absence of witness held not error.
    In prosecution for theft of a yearling, court did not err in denying a continuance to obtain evidence of absent witness to the effect that witness saw one jointly indicted driving a yearling toward defendant’s place, where it did not appear when such transaction occurred with reference to the time of the killing of the stolen animal, or that the animal was the same animal.
    6. Criminal law <@=>396(2)— State had right to develop whole conversation.
    -Where accused charged with cattle theft elicited from witness that another person told witness he had bought the yearling and wanted witness to help him kill it, it was proper for the ■ state to develop that in the same conversation such third person said he bought the yearling from accused, in view of Vernon’s Ann. Code Cr. Proe. 1916, art. 811.
    7. Criminal law c@=>1169(2) — Admission of evidence held harmless.
    Any error in permitting owner of stolen yearling to testify as td when he heard about the yearling being stolen, the objection being that this could not be binding on accused, was not so harmful as to demand a reversal, where the evidence was undisputed that the animal had been stolen, slaughtered, and the meat peddled.
    8. Criminal law <3=721 (4) — Argument held not allusion to accused’s failure to testify.
    Statement of district attorney in argument, “The defense of the defendant was all a fabrication made especially for that occasion, and that defendant furnished the meat, and that L. peddled it, and they went into partnership,” cannot be considered as an allusion to accused^ failure to testify; accused and L. being indicted as principals.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Murry Staton was convicted of cattle theft and appeals.
    Affirmed.
    Wilkinson & Cook, of Mt. Pleasant, for appellant.
    It. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was indicted for theft of cattle from A. P. King, W. H., C. G. and Virgil Hughes, who were alleged to be joint owners. Conviction followed, with an assessed punishment of two years in the penitentiary.

A. P. King testified for the state that he owned cattle jointly with the other parties named in the indictment; that of his own knowledge he did not know whether one had been stolen, but if one had been taken it was without his consent. It developed on cross-examination that King was a member of the grand jury which returned the indictment. Appellant filed a motion, requesting permission to withdraw his announcement, and insisted that the indictment should be quashed because King was on the grand jury. The motion seems to be based on the proposition thai he should not have been permitted to be present while the grand jury was investigating and voting on the question, but “should have retired and left the matter with the rest of the grand jury.” The cases cited by appellant are not in point. They are ones where the district attorney, or some other unauthorized person, was present while the grand jury was “deliberating or voting upon the accusation.” The principle would not apply to one who was regularly impaneled as a grand juror. To solve that question it is necessary to have recourse to article 413 of our Code of Criminal Procedure. It will be readily seen from an examination of the articles immediately preceding (390 to 411, inclusive) that the matter urged against the grand juror is not a disqualification. . Article 413, C. C. P., provides:

“A challenge to a particular grand juror may be made orally, and for the following causes ■only.’’

Subdivision 2:

“That be is the prosecutor upon an accusation against the person making the challenge.”

Conceding that King comes within the provision of subdivision 2, and would have been subject to challenge at the instance of appellant, when does the challenge have to be interposed? Article 409, C. C. P., reads:

“Any person, "before the grand jury has been impaneled, may challenge the array of jurors or any person presented as a grand juror; and, in no other way, shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall, upon his request, be brought into court to make such challenge.”

The latest consideration' of said article, and the exceptions thereto, was in Robinson v. State (Tex. Cr. App.) 244 S. W. 599. For collation of other authorities, see notes under said article 409 in volume 2, Vernon’s Crim. Statutes. The bill presenting this question for review fails to bring appellant within any of the exceptions which would excuse him from having challenged the grand jury before impanelment. It is stated in the bill that “the facts are such that this defendant or his attorneys had no way or notice to take advantage of this procedure;” that is, of challenge in limine. The facts are not set out, an'd the statement appears merely as a conclusion, and as a reason why the court should have considered the motion to quash. It is not a certification by the trial judge of the correctness of the statement. The alleged theft is shown to have been committed in September. The grand jury which returned the indictment convened in January following. The bill fails to show whether appellant was in jail or on bond when the grand jury convened, and fails to present an excuse why, in either event, he could no't have exercised the right of challenge in lim-ine provided in article 409, supra.

W. H. Hughes testified substantially that in May, 1921, he purchased in a trade the stolen animal from appellant. Appellant had been milking the mother of the yearling. The yearling run in the pasture on what was known as the old Kelly place. Some time in September, from a source undisclosed in the record, Hughes received information on Monday that this animal had been killed on the Friday preceding. As a result of this information he found the head of the animal in a pool of water on the Kelly place. He also received information that one Less Holder had peddled some beef on the Saturday before. Hughes on this same day, Monday, asked appellant if he knew anything about the killing of the yearling, which appellant at that time denied. On Tuesday night, however, appellant went to the home, of Hughes and then stated that he had not told the truth about the killing of the animal in the prior conversation, but admitted that he and Less Holder had killed it, and said if Holder would not pay for it he (appellant) would if he (Hughes) would stop the prosecution. In this same conversation appellant told Hughes, he thought Holder had bought the yearling, but gave no reason for so thinking. Appellant admitted in this conversation that he knew the animal they had killed was the one he had traded to the witness. It was in proof that B. Brown, Raymond MeCullor, Less Holder, Welton Kelly, and appellant were all present at the time the animal was killed. Holder had employed Brown and Kelly to assist in killing the animal, and was to pay them $1 each for their services. Holder secured the implements with which to do the killing and the knives necessary to dress the animal. He, with Brown and Kelly, proceeded in the direction of the Kelly, place; they met appellant and Raymond Mc-Cullor. Appellant called Holder off from the others, and had a private conversation with him. Brown and others of the party heard Holder ask appellant if he had the yearling “penned,” and heard appellant reply, “Yes." After the animal was killed some of the witnesses claimed that Holder and Raymond MeCulSor tdok the head and entrails off somewhere south of the house, at which time appellant was quartering the beef'. Brown and Kelly disclaimed knowledge that the animal was stolen at the time it was killed, and .claimed to have been assisting in the butchering of the animal at the request of Holder. After the state had developed the foregoing testimony appellant offered as a witness one McKnight, who claimed to have seen Holder penning the yearling in question on the Kelly place. It was in evidence from the witness Tew that he had seen Holder driving a yearling in the Hughes pasture about the time the animal is alleged to have been killed. It was shown by the state, on cross-examination of these two witnesses, that they were each under indictment for felonies themselves. By one Price appellant introduced evidence to the effect that on Sunday night after the killing-of the animal on Friday he saw Holder going down through the old Kelly field on horseback, with something in a sack which witness claims to have seen him put in a pool of water. Appellant himself did not testify. The state placed upon the witness stand in rebuttal Raymond MeCullor, who testified that on the Friday afternoon before the animal was killed about dark of that day appellant got him (witness) to go with him and help pen the animal in question; that they afterwards met Holder and the other parties, and went back and killed and butchered the animal. This witness was staying at appellant’s at the time. He says that on Sunday afternoon he and appellant got the head of the yearling and threw it in the pool of water where it was found. One witness testified that Holder took the hide off some distance from where the animal was killed, saying it was not fit to sell, as it had been cut up too much in skinning. , This hide was found in a branch somewhere near the place the animal was butchered. The deputy ■sheriff testified that after having found the hide he talked to appellant about the matter, and told him he (appellant) was getting in an awful close place, and that somebody had “to do some coughing up or go to the penitentiary,” and that appellant replied to him that he had “lied like a dog” to Hughes when the latter had asked him about the yearling, and that appellant then told witness about the whole transaction about them killing it.

Appellant excepted to the state proving by W. H. Hughes (bill No. 2) that after he had found the head of the stolen animal he asked appellant if he knew anything about it being killed, which appellant denied. In view of the evidence showing this statement to have been false, we are unable to see any objection to proving it as a criminative fact against accused. He was not under arrest or in jail at the time of the conversation.

Appellant sought a continuance, among others, for one Lewis Sanders, by whom he expected to prove that Holder had told him (Lewis) that he (Holder) was going to get into trouble over the yearling he had killed, and if he did he was going to put it .off on appellant. He tendered substantially the same proof on the trial through the witnesses Price and Carpenter. Bills 5 and 6. The evidence was excluded on objection by the state, and we think properly 'so. The evidence of Sanders would for the same reason have been inadmissible. Greenwood v. State, 84 Tex. Cr. R. 548, 208 S. W. 662. We quote from Walsh v. State, 85 Tex. Cr. R. 208, 211 S. W. 241.

“It is settled that one accused of crime may show that another person committed the offense with which he is charged, where the guilt of such other person would be consistent with the innocence of the accused. But this proof must be by competent evidence. Dubose v. State, 10 Texas Crim. App. 280. In the case of Blocker v. State, 55 Texas Crim. Rep. 30, this court qualified the general rule excluding the admission of the third party as hearsay, and holding that in a case where the prosecution was supported by circumstantial evidence alone that in connection with circumstances tending to show that another and not the accused had motive and opportunity to commit the offense, the declaration of such third person that he had committed it should he received as one of the circumstances in favor of the accused on trial.”

Walsh offered the statement of one Miller, who had been condemned to death for the same offense for which Walsh was on trial. We quote further from the opinion in the Walsh Case:

“Miller being charged by indictment with the same offense, was by virtue of the express provisions of article 791 of our C. C. P. not a competent witness for appellant and was disqualified further under article 788 by his conviction of a felony. If, therefore, appellant had offered him as a witness to prove that, while he, appellant, was present at the time the homicide took place, no part was taken in it by him, Miller’s testimony would have been excluded on objection upon either or both of the grounds stated. If the contention of appellant on the phase of the case we are discussing is sound, it would illustrate what seems to the writer an anomalous condition of the rules of evidence in this state, because while under express statutes he could not put Miller on the witness stand and prove by him under oath any fact exculpating appellant, he could prove an exculpating declaration made by Miller, not under oath, and out of court, to a third party, by introducing the third party as a witness and making proof that Miller had made the statements to him.”

In the instant ease the state’s evidence indicated that appellant .and Holder acted together in the theft. It was not a case depending wholly upon circumstantial evidence, and is therefore not brought within the exception stated in Blocker v. State, 55 Tex. Cr. R. 30, 114 S. W. 814, 131 Am. St. Rep. 772. Holder, having been indicted for the same offense, brings this case clearly within the principle announced in Walsh’s Case, supra.

Appellant’s application for continuance was based on the absence of three witnesses, Lewis Sanders, Raymond McOullor, and Pleas McOullor. The proposed testimony of Sanders has already been discussed. Raymond McCullor was present at the trial. Pie was not used by appellant, but by the state. The application states that Pleas McOullor would testify:

“That he saw the said Less Holder after the yearling in the pasture known as the Hughes pasture, and that he was driving the yearling toward the Kelly house, and the witness asked the said Holder where he got the yearling, and that he replied that he bought it, and "that he intended to kill it and sell the beef.”

It will be observed that it is not made to appear when this transaction occurred with reference to the time of the killing of the stolen animal; neither does it appear that the animal which it is claimed Pleas McOul-lor saw Holder driving was the animal aft-erwards killed, the theft of which was the subject of the investigation in this case. It is not shown- that Pleas McCullor was acquainted with the stolen animal, or could identify it as the one it is claimed he saw Holder driving. If the statement claimed to have been made by Holder to Pleas Mc-Oullor would be admissible as an exception to the rule discussed relative to the proposed testimony of Sanders, Price, and Carpenter as being res gestee of the act of said Holder in driving an animal, still, before the action of the court in overruling the application for continuance on account of the absence of Pleas McOullor could be held erroneous, the proposed testimony must be shown to have been relative to Holder’s conduct with reference to the identical animal alleged to have been stolen, and at a time when the circumstance would have some bearing upon the matter under investigation. In view of the development of the evidence upon the trial, and the uncertain character of the proposed testimony as shown by the applicatiofi, we are not inclined to hold that the action of the court in refusing the continuance for this witness to have been error.

No error is presented by bill of exception No. 3. Brown had testified as a state’s witness, hut had not been asked auout any conversation with Holder. On cross-examination it was elicited from him that Holder had told witness he had bought a yearling, and wanted witness to help him kill it. The state then developed that in the same conversation Holder said he bought the yearling from appellant. Under the express provision of article 811, C. C. P. the state had the right to develop the whole conversation on the same subject. See authorities collated under this article in volume 2, yer-non’s Crim. Statutes. Appellant complains (bill No. 4,) because the state was permitted to ash the witness Kelly, “When did you hear about that yearling being stolen?” The objection being that this could not be binding on appellant. The witness answered, “I think that it was either Monday or Tuesday after the yearling had been stolen on Friday.” The evidence being undisputed that the animal had been stolen, and hilled on Friday, and the meat peddled out by Holder on Saturday, we think the question and answer could not be so harmful to appellant as to demand a reversal. There appeared to be no question about the theft. The dis: puted issue was appellant’s connection therewith.

Appellant did not testify. Defensive testimony was offered through other witnesses. In argument the district attorney said:

“The defense of the defendant was all a fabrication made especially for that occasion, and that defendant furnished the meat, and that Less Holder peddled it out, and they went into partnership.”

Exception was taken to the argument as being an allusion to appellant’s failure to testify. We are unable to conceive how it can be distorted into such a construction. The explanation of the trial judge that both appellant and Holder were indicted as principals, and that the argument was a reasonable deduction from the evidence, appears to be both appropriate and pertinent.

The judgment is affirmed. 
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