Thomas v. State

Citations

• 1 Tex. Ct. App. 289

Syllabus

<p>1. Theft—Indictment and Variance.—An indictment for the theft of a gelding charged that the animal was taken from the possession of one B., who was also alleged to be the owner; but the proof showed that the animal, when taken, was in the possession of an employé of B., the owner, by the latter’s permission. Seld, that the possession of the servant was that of the owner, and was properly laid in the owner; and that there was no variance between the proof and the charge in the indictment.</p> <p>2. Practice.—As a general rule, no testimony should be allowed after argument to the jury has commenced; but the Code of Criminal Procedure (Pase. Dig., Art. 3046) authorizes the judge to allow testimony at any time prior to the conclusion of the argument, if it appear necessary to the due administration of justice.</p> <p>3. Same.—Counsel for accused, while addressing the jury, moved the court to withdraw from the jury the. testimony of a state’s witness because he had not been sworn; whereupon the court allowed the witness to be recalled, sworn, and reexamined. Seld, that this was not error.</p>