
    DURLEY v. STATE.
    (No. 3785.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1915.)
    1. Criminal Law <&wkey;1170 — Rulings on Evidence-Prejudicial Error.
    Where, on a trial for cattle theft, a state’s witness confessed that he was a thief and that, he had aided accused in the theft, the exclusion of evidence on cross-examination that the witness had attempted to get .a third person to aid in stealing- cattle was not prejudicial, especially where the witness had-already testified on the direct that he had talked with the third person about going with him and accused to steal cattle, and that the third person had refused.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. <§=> 1170.]
    2. Criminal Law i&wkey;829 — Instructions—Refusal of Instructions Covered by Instructions Given.
    Where the court gave a proper charge on an issue, it was not necessary to give a special requested charge thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <S&wkey;829.]
    Appeal from District Court, Upshur County; J. A. Ward, Judge. •
    Dave Durley was convicted of cattle theft, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of cattle theft, and his punishmént assessed at two years’ confinement in the penitentiary.

Pomp Boren testified as a witness for the state, and stated that he, appellant, and Jake Bolton had stolen the cow. In a hill of exceptions it is shown that after the witness had been excused appellant recalled him, and desired to ask him:

“Did you not, just a short time before the killing of this Brawley cow, have a conversation with Early Skinner, in which just you and Early Skinner were together, in which you stated to him or .asked him to go with you to kill some cattle, and he refused to do it?”

The court sustained the objection, and of this action of the qourt appellant complains. The witness Boren had confessed he was a thief, and had aided in the theft of the Brawley cow, and to prove that he desired to get Skinner to aid in stealing other cattle would not add to his moral turpitude. In addition to this, the record discloses that on direct examination he had testified that while rabbit hunting he had talked with Early Skinner about going with him and appellant to steal cattle, and Early Skinner had refused. So that the testimony sought to be elicited would have been but a reiteration of what he had already testified to when first called as a witness.

The only other bill of exceptions in the record complains of the action of the court in overruling his motion for a new trial, and in it — the only other question than that discussed above — is that the charge of the court on alibi placed the burden on defendant to prove this defense. This paragraph of the charge is not subject to such criticism, and is in language frequently approved by this court. And, having given this charge, it was not necessary to give the special charge requested on that issue.

The judgment is affirmed.  