
    SULLENGER v. STATE.
    (No. 3883.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.
    On Motion for Rehearing, Feb. 23, 1916.)
    1. Criminal Law <^>814 — Total—Instruc-tion on Circumstantial Evidence — Necessity.
    Where defendant admits that he did the killing in a murder case, or the taking in theft, or that he did the act which constitutes the factum probandum, whatever be the offense charged, it is unnecessary to charge on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833.1839,1860,1865, 1883, 1890,1924,1979-1985,1987; Dec. Dig. @=814.]
    2. Criminal Law @=814 — Trial—Charge on Circumstantial Evidence — Necessity.
    In a prosecution for cattle theft, where the taking of a cow by defendant was shown directly, but circumstantial evidence was introduced to show the intent with which the taking was committed, a charge on circumstantial evidence was not required, since, where an act has been proved by direct evidence, such a charge is not requisite because the intent with which the act was committed is sought to he established by circumstances.
    [Ed, Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833,1839,1860,1865, 1883, 1890,1924,1979-1985,1987; Dec. Dig. @=814.]
    3. Criminal Law @=829 — Trial — Instruction-Repetition.
    In a prosecution for cattle theft, where the court properly submitted the defense of defendant’s claimed purchase of the cow from a third party, the refusal of the specific charge that, if defendant bought the cow, to acquit him was proper.
    [Ed. Note. — For other cases, see Criminal I/aw, Cent. Dig. § 2011; Dec. Dig. @==>829.]
    4. Darceny @=43 — Prosecution—Evidence.
    In a prosecution for cattle theft, where defendant claimed that he bought the black muley cow charged to have been stolen, testimony as to his taking and possession of a red cow was admissible.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 130, 133; Dec. Dig. @=43.]
    5. Animals @=10 — Prosecution — Evidence —Statute.
    Under Rev. St. art. 7160, as amended by Acts 33d Leg. c. 69 (Vex-non’s Sayles’ Ann. Oiv. St. 1914, art. 7160), providing that unrecorded brands shall not be recognized as evidence of the ownership of live stock, except in criminal cases, in a prosecution for larceny of a cow, testimony as to the bi’and on the stolen cow in defendant’s possession was admissible.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 8-12; Dec. Dig. @=10J
    0. Jury @=43 — Qualification—Knowledge of Language.
    A juror, who had lived in America only five years, could read, write, and understand English only a little, and did not understand all that was asked him touching his qualifications as a juror, and who would have to guess at what was said on trial, was not qualified to sit in a criminal ease.
    fl'd. Note. — For other cases, see Jury, Cent. Dig'. § 248; Dec. Dig. <@=>43.]
    On Motion for Rehearing.
    7. .Tuns <@==>85 — Qualifications of Juror— Discretion of Court.
    A large discretion is vested m the trial judge in passing upon the qualifications of a juror.
    [Ed. Note — For other cases, see Jury, Gent. Dig. § 405; Dee. Dig. <§=>85.]
    8. Criminal Law <@=>1152 — Review—Qualifications of Juror — Discretion of Court.
    Where a bill of exceptions clearly shows that a juror was disqualified and that defendant properly objected and preserved the question by proper bill, the Court of Criminal Appeals cannot hold that the trial judge properly exercised his discretion in holding the juror qualified.
    [Ed. Note — For other cases, see Criminal Law, Cent. Dig. §§ 3053-8057; Dec. Dig. <§=> 1152.]
    9. Criminal Law <@=>1092 — Trial — Amendment of Bill of Exceptions.
    During the term in which conviction is had, upon proper motion and service thereof, the court, having the proceedings and judgment still in his control, can, if through mistake or otherwise a bill of exceptions is untruthful, or certifies to facts and matters which did not occur, upon proper notice to the interested, parties, make the matter appear of record as it occurred in fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <@=>1092.]
    10. Criminal Law <@=>1092 — Appeal — Amendment of Bill of Exceptions Pending Rehearing — Statute.
    Under Code Cr. Proc. 1911, art. 916, providing that the effect of an appeal is to suspend and arrest all further proceedings in the trial co.urt until the judgment of the appellate court is received by the court from which the appeal was taken, the trial court could not, pending rehearing, on motion of the state, amend defendant’s bill of exceptions to overruling of his objection to a juror.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283dr-2861, 2919; Dec. Dig. <@=>1092.]
    11. Criminal Law <@=>1092 — Trial—Amendment of Bills of Exceptions After Term —Fraud.
    Where bills of exceptions and statements of facts have been properly agreed to and approved and filed in the lower court, after term has expired they cannot be amended or attacked without showing fraud.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <@=>1092.]
    Appeal from District Court, Randall County; I-Iugh L. Umphres, Judge.
    Rube Sullenger was convicted of cattle theft, and he appeals.
    Reversed and remanded.
    R. R. Hazlewood, of Amarillo, Frank Ford, of Decatur, and Yeale & Lumpkin, of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for cattle theft, with the lowest punishment assessed.

In view of the disposition we shall make of this case, we see no necessity of making any statement of the testimony. We have carefully considered all of the special charges requested by appellant. Those presenting any proper charge were covered by the court’s charge. None of the others should have been given.

Mr. Branch, in his Criminal Law, § 203, so aptly lays down the rules which show when a charge on circumstantial evidence is unnecessary, we quote them with approval:

“If defendant admits that he did the killing in a murder case, or the taking in theft, or that ho did the act which constitutes the factum probandum, whatever be the offense charged, it is not necessary to charge on circumstantial evidence.”
“Where an act has been proved by direct evidence, a charge on circumstantial evidence is not required because the intent with which the act was committed is sought to be established by circumstances.”

• Mr. Branch cites many cases of this court, which are in point, establishing both these rules. We deem it unnecessary to copy them here, but cite the following, some of which he cites: Usher v. State, 47 Tex. Cr. R. 93, 81 S. W. 309; Huffman v. State, 28 Tex. App. 174, 12 S. W. 588; Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Houston v. State, 47 S. W. 468; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Barnes v. State, 53 Tex. Cr. R. 629, 111 S. W. 943; Baxter v. State, 43 S. W. 87. A large number of additional cases could be collated, but we deem it unnecessary.

Several witnesses testified, in substance, that appellant admitted the taking of the cow with which he was charged by the indictment of stealing a black muley cow, the property of H. M. Jackson. His defense was that he bought the cow, and that his taking of her was under a claim of right by reason of his purchase. These questions were properly submitted in his favor by the court’s charge. The circumstantial and positive evidence was amply sufficient to sustain the verdict that appellant stole the cow, and was also amply sufficient to show that his claimed purchase was false, and ihat his claim that he took the cow under such claim was also false.

Paragraphs 5 and 6 of the court’s charge also covered appellant’s said defenses sufficiently, so that it was unnecessary to charge specifically that, if appellant bought the cow from one Smith, to acquit him. Under the testimony his defense of claimed purchase from Smith necessarily embraced his claimed possession by virtue of his claimed purchase.

Appellant has various bills to the testimony of several witnesses about his taking and possession, etc., of a red cow. This testimony was all admissible, because of his claimed defenses. And the court correctly ruled in every instance, as presented by his bills on that subject? Neither does any of his bills about Jackson’s brand and the testimony of the several witnesses on that subject show any error. This character of testimony is admissible, since the amendment of article 7160 of the Revised Statutes by the act of March 31, 1913, p. 129, the amendment to that article providing that it shall not apply in criminal cases. Neither does any of appellant’s bills to testimony that was offered present any error. They, are numerous. We have, considered them all, but think it unnecessary to discuss any of them in detail.

Appellant’s first bill of exception to the court’s refusal to sustain his objection to the juror Herman Meyers shows that said juror was a German, had lived in America only about five years, that he could read and write the English language a little bit only, and that he could only understand a little English, just enough to tell what people were talking about, and did not understand all that was asked him touching his qualifications-as a juror, and that, if he was taken on the jury, he could not understand all that was said, and would have to guess at a part of it from what he heard. The bill further shows that this juror was forced -upon appellant, over his objections after he had exhausted all of his peremptory challenges on other jurors more objectionable than he was. This question has been so thoroughly considered and discussed by the opinions of this court and of the Supreme Court when it had criminal jurisdiction that we deem it unnecessary to discuss it here. We merely cite the cases where the question has been discussed and decided. Lyles v. State, 41 Tex. 172, 19 Am. Rep. 38; Etheridge v. State, 8 Tex. App. 133; McCampbell v. State, 9 Tex. App. 124, 35 Am. Rep. 726; Nolen v. State, 9 Tex. App. 419; Mitchell v. State, 36 Tex. Cr. R. 278, 33 S. W. 367, 36 S. W. 456. For this error alone it will be necessary to reverse and remand this cause.

Appellant’s bill challenging the juror Cur-rie presents no error.

Reversed and remanded.

On Motion for Rehearing.

The state urges that this court erred in holding that the juror Meyers was disqualified as shown by appellant’s bill No. 1, as held in the original opinion. We have again examined this question and the authorities applicable thereto, and are confirmed in our opinion that the holding of this court was correct.

The state contends, and we think properly, that a large discretion is vested in the trial judge in passing upon the qualification of a juror. While this is true, when an appellant’s bill, properly allowed and approved by the trial judge, clearly shows that a juror is disqualified, and the appellant made the proper objection and preserved the question by proper bill, then the trial judge could not be held to properly exercise his discretion in holding the juror qualified. If the law is that a juror is disqualified, this court could not sanction the holding of a trial court to the reverse, or in the very face, of the law. Counts v. State, 181 S. W. 723.

The state further seeks to have this court postpone action on its motion for a rehearing in order to enable it to make a motion in the trial court to, in effect, amend said bill of exceptions by now adding thereto all of the testimony of said juror on his voir dire examination, claiming that, if now permitted to so add to and amend said bill, the whole examination of said juror will show that the action of the court in holding him qualified was correct, and thereby prevent a reversal. The state does not contend that any fraud or bad faith on the part of the appellant or his attorney was practiced in procuring and the judge allowing and approving said bill. In fact, as we understand, the reverse of this is conceded. At least since the adoption of our Code of Criminal Procedure in 1856 our statute has been (article 916):

“The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had until the judgment of the appellate court is received by the court from which the appeal was taken”

—with certain provisos and exceptions since added, not applicable to this question. It has always been held by this court that this statute means what it says and says what it means. It is true that, during the term of court at which a conviction is had, upon the proper motion and service thereof, the court, having the proceedings and the judgment still in his control, can make the record and every part thereof—

“speak the truth; and if, through mistake or otherwise, a bill of exceptions is shown not to be truthful, or to certify facts and matters which did not occur, the court, upon proper notice to the interested parties, has authority to make the matter appear of record as it actually occurred.” Cain v. State, 42 Tex. Cr. R. 211, 59 S. W. 275.

But this must be while the trial court has jurisdiction and control over its orders and the papers in the cause. It may be that, even after the adjournment of court, upon proper motion and" notice, where a fraud has been perpetrated on the court, it would have power and authority to correct it, and this court might recognize such power and authority under such circumstances, but we are not called upon in this case to make any such-holding, because no such question arises here.

The state, in its motion, attaches the affidavit of the trial judge, in which he swears the juror Meyers did answer as shown in bill of exceptions No. 1, but he says all of his answers and the questions to him are not included in the bill. If that be true (and we have no question as to the truthfulness of the judge’s statement), it was his duty, before approving that bill, to include all tne questions and answers, and to so modify and qualify the bill as to make it give all of the facts; and, if he did not do so at the-proper time, this court cannot sanction such a practice as is asked by the state in this case of delaying a decision here to await the action of the lower court at another term to so amend the bill of exceptions, which was allowed and filed in time as authorized and required by law. We again will state we are not discussing a question where fraud and imposition is charged in procuring a bill. This court has always held that, after bills of exceptions and statements of facts have been properly agreed to and approved and filed in the lower court and the term has expired, they cannot be amended nor attacked without showing fraud. It is unnecessary to, collate the cases, but as to statement of facts, see some of the cases collated in Vernon’s C. C. P., in his notes on pages 811, 812. The same principle applies to bills of exceptions. See, also, Howard v. State, 178 S. W. 506; Bizzell v. State, 72 Tex. Cr. R. 442, 162 S. W. 865; Pye v. State, 154 S. W. 226; Merrell v. State, 70 S. W. 982; Lara v. State, 50 Tex. Cr. R. 163, 95 S. W. 1083; Rainey v. State, 20 Tex. App. 473; Lindley v. State, 11 Tex. App. 284.

The motion is overruled. 
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