1. Evidence — Reproduction of Testimony of Deceased Witness. In order to qualify a witness to reproduce the testimony of a witness who has died since testifying at a former trial, it is not requisite that he should be able to testify to the substance of the entire testimony, but if said witness can testify to the substance of all that was said on direct and cross-examination upon one subject, it will be admissible, though there may be other portions of said testimony as to other matters not remembered by the witness.
2. Theft of Cattle — Charge of Court — Possession-Accustomed Range. — On a trial for theft of cattle, a charge of the court which instructs the jury, that an animal running on its accustomed range is in the constructive possession of its owner, is a correct enunciation of the law, and is not a charge on the weight of testimony; and if so, it is harmless, because whether on or off its range, unless in actual possession or control of another, an animal is in the constructive possession of the owner.
3. Same — Circumstantial Evidence. — Where there is direct and positive testimony as to the fact of guilt by an eye-witness, or the facts proved were in such close juxtaposition to the main fact as to make them equivalent to direct testimony, the court is not required to charge upon circumstantial evidence.
4. Same — Recent Possession. — On a trial for theft of cattle, when there was no evidence of explanation of his possession by defendant, and where possession is not the only inculpatory circumstance to show guilt, the court is not required to charge upon possession of recently stolen property.
SIMKINS, JUDGE.
Appellant was convicted of the theft of cattle, and his punishment assessed at three years in the penitentiary.
This is the third appeal. It was reversed November 20, 1890, because there was no charge on alibi (15 Southwestern Reporter, 405); it was again reversed November 14, 1891, because the charge on alibi was not sufficient (30 Texas Criminal Appeals, 342); and it is again before us.
1. Appellant complains that the court erred in permitting the witness Stokes to reproduce the testimony of P.F. Breeden, a deceased witness, who testified on a former trial. We think there is nothing in the objection. The same testimony of wagon tracks, and the finding of the meat in West's and Bryant's houses, were testified to by three or four other witnesses, for the track was trailed by three witnesses, from the offal of the stolen animal to West's house, the morning after the killing. Nor is it true that a witness must be able to testify to the substance of the entire testimony of a deceased witness in order to be qualified to reproduce it; for, if so, you could always disqualify a witness by proving a forgetfulness of a part of the testimony. If a witness can testify to the substance of all that is said on direct and cross-examination upon one subject, it will be admissible, though there may be other portions of said testimony, as to other matters, not remembered by the witness. 1 Greenl. Ev., sec. 165; Summons v. The State, 5 Ohio St. 358; Thomp. on Trials, sec. 388. So far as given, the testimony in no way differs from testimony already given by other witnesses on the subject of the wagon track.
2. The court did not err in charging the jury that the animal running on the range is in the constructive possession of its owner. We are unable to appreciate the position that it is a charge on the weight of the testimony. Wherever running, whether on its range or not, unless in the actual possession or control of another, the animal is in the constructive possession of its owner. The fact that it was on or off the range is wholly immaterial. If a charge on the weight, it is harmless. As said in the Bishop case, 43 Tex. 395, there must be a substantial infraction of the statute forbidding a charge on the weight of evidence to reverse.
3. The court did not err in failing to tell the jury that this was a case wholly of circumstantial evidence. The evidence was direct and positive as to appellant's guilt, as testified to by an eye-witness, and if the shooting was not seen, the facts were in such close juxtaposition to the shooting as to be equivalent to direct testimony. The charge as given was sufficient.
4. The court did not err in refusing to charge on possession of recently stolen property. There was no explanation given of the possession. It was not the only circumstance relied upon by the State in proving the guilt of appellant. In the case at bar the appellant and his confederate were seen butchering the animal, and on investigation were found to have knocked off and hid the horns, and cut out the marks and brands, and cut the hide into fragments and hid them. The decisions cited by appellant's counsel have no application.
5. We think the testimony fully supports the verdict of the jury. The charge was fair and full, and we find no reversible error. The only question on the facts is that raised by alibi defense. Three juries have passed upon that defense, and found it not true, and we are satisfied that the verdict is correct.
The judgment is affirmed.
Affirmed.
HURT, P. J., concurs. DAVIDSON, J., absent.