Bob McFadden v. The State, 28 Tex. Ct. App. 241

White, Presiding Judge. Appellant was convicted on the second count in the indictment for receiving and concealing stolen property, knowing the same to have been stolen. 1.. Defendant’s application for continuance failed to show diligence to procure the attendance of the absent witnesses, and the court was justified in overruling it in the first instance upon that ground.

In view of the testimony which was adduced upon the trial the said proposed absent testimony, in so far as the same appears to be probably true, was immaterial, and if adduced would not, in the light of the evidence, be likely to change the result of the trial. Browning v. The State, 26 Texas Ct. App., 432; Boyett v. The State, Id., 689; Peace v. The State, 27 Texas. Ct. App., 83. 2. Defendant’s second bill of exceptions shows that the court permitted the State’s witness McCray to read from a bill of sale a description, of the cattle therein mentioned and described. There was no error in this proceeding.

McCray identified the bill of sale as the one executed to him by C. C. Williams, at the time he purchased said cattle. HA could refresh his memory as to the marks and brands of the animals by-said bill of sale. But had there been any virtue in the objection to this testimony, it has lost whatever of merit it might have had by the fact-that the bill of sale itself—the same identified by this witness—was read in evidence to the jury by the prosecution. 3. But defendant objected to the reading in evidence of the bill of' sale, as shown by his third bill of exceptions, because said bill of sale was executed by C. 0.

Williams, or Lum Freeze, who signed the same as 0. C. Williams, after the offense charged in the indictment was consummated, and upon the ground that he, defendant, was not a party to, and was not aware of the contents of the instrument. It was shown by the evidence-that this defendant was present in the room, and the bill of sale was a part of the res gestee of the consummation of the crime. The evidence-showed a fraudulent conspiracy between the parties to sell or dispose of the stolen animal.

In such a case, the acts and declarations of one of-the conspirators, even in the absence of the defendant, but before the-, consummation of the sale of the property and division of the proceeds, would be legitimate evidence against the defendant. O’Neal v. State, 14 Texas Ct. App., 582. The parties are principal offenders, or acting together, as long as any portion or object, of the common design remains-incomplete; in other words, until the full purpose and object of the conspiracy is consummated and accomplished. Smith v. The State, 21 Texas Ct. App., 107. 4.

Defendant’s objections to the admission of the written testimony taken on the examining trial of two witnesses who had since died, is without merit. No form is prescribed by law for the certificate of an examining court to testimony taken before it. Willson’s Crim. Stats., secs. 1768, 2535; Golden v. The State, 22 Texas Ct. App., 1, and Clark v. The State, ante, p. 198. 5. Defendant was sworn as a witness in his own behalf.

His counsel asked him but two questions, and his testimony in full is that, “at the time Lum Freeze came to James Pollard’s for me, and when I started to-help him drive the cattle, I did not know that they were stolen. All I had to do with them was to help Freeze to drive them to Greenville.”' The State did not cross-examine the defendant. What we have .copied is all that was testified by him.

In his closing argument the district attorney commented upon' the fact that defendant, though he had gone upon the stand as a witness, and had had a chance to explain his connection with the transaction fully, had, nevertheless, failed to do so, and he remarked, “You (the jury) wanted to know all about it.

Bob (defendant) would not tell it, though he had a chance to do so.” Defendant saved a bill of exceptions to these remarks because “they were contrary to the spirit of the law authorizing defendants to testify in their own behalf.” It is insisted that under our statute allowing or permitting a defendant to testify in his own behalf, his failure to testify to any matter about which he does not wish to testify when he has gone upon the stand and testified to such matters as he desired, can not be taken as a circumstance against him, and is expressly prohibited from allusion to or comment upon by counsel. Gen.

Laws, 21st Leg., p. 37, ch. 43, sec. 1. Under similar statutes the rule has been otherwise held. Mr. Wharton says: “This protection, however, from comment does not apply to cases in which the defendant submitting himself as a witness, declines to answer particular questions on the ground of self-crimination, or fails to explain inculpatory facts.” Whart. Crim. Ev., 9 ed., sec. 435a, citing The State v. Ober, 52 N. H., 549; Comm. v. Mullen, 97 Mass., 547; Stover v. The People, 56 N. Y., 315. The identical question here presented came before the Supreme Court -of Iowa in the case of The State v.

Tatum, and in deciding it they use the following language: “It is conceded that it was the right of the district attorney to comment upon such testimony as the defendant gave, but it is urged that he had no right to comment upon the defendant’s ‘failure to testify as to matters regarding which he preferred to keep his mouth closed. The exemption from unfavorable comment extends only to such defendants as choose not to avail themselves of the privilege of testifying in their own behalf.

Here the defendant puts himself upon the stand as a witness, and we can see no reason why the counsel for the ¡State should not comment on his testimony as fully as on that of any other witness. By putting himself upon the stand and testifying to material facts in his defense, the defendant waived the protection which the statute accords him.” Citing Cooley’s Cons. Lim., 317, and note; 59 Iowa, 472. In The State v.

Pfeiferle (Kansas Supreme Court, Dec. 9, 1886), it was held that “where a defendant in a criminal case takes the witness stand to testify in his own behalf, he assumes the character of a witness, and is entitled to the same privileges and is subject to the .same treatment, and to be contradicted, discredited, or impeached, the .same as any other witness.” See same case reported in full in the 9th Criminal Law Magazine, 222.

After a careful examination of all the matters complained by appellant, and because the trial below appears in all things to have been in conformity to law, the evidence being sufficient to sustain the conviction,, we have found no reversible error. Wherefore the judgment is affirmed.. Affirmed. Judges all present and concurring.