Kelly v. State

Citations

• 1 Tex. Ct. App. 628

Syllabus

<p>1. Theft of Animals.—The act of August 21, 1876, providing that theft of property of less value than 020 shall be punishable by confinement in the county jail, etc., does not repeal the act of May 17, 1873, amendatory of Article 766 of the Penal Code, whereby theft of cattle, sheep, goats, or hogs i^ punishable by imprisonment in the penitentiary. The ease of Spence v. The State, ante p. 541, cited on this point with approval.</p> <p>2. Evidence—Pbaotice.—If, on cross-examination of a state’s witness, the defendant calls out illegal testimony, he is not entitled to have it withdrawn from the jury.</p> <p>3. Same—Cattle-marks.—A mark is admissible as proof of ownership of an animal, though not recorded. Johnson v. The State, ante p. 333, cited on this question and approved.</p> <p>4. Same—Effect of Impeachment of a Witness.—The credibility of a witness, although impeached, is a question for the jury, and the court should, not assume that the witness has been successfully impeached, and therefore instruct the jury to disregard his testimony.</p> <p>5. Charge of the Court.—The only evidence identifying the accused as the perpetrators of the theft was that of a witness for the state, who testified that he helped the accused carry off and kill the stolen hog, but then had no reason to doubt the ownership claimed by the accused. Held, that as the jury might, from all the evidence, have inferred that the witness was an accomplice, the court should, though not so asked, have instructed the jury that, if they did so infer, they could not convict on the uncorroborated testimony of the witness.</p>