ROGERS 
v. 
STATE.

No. 18465.

Court of Criminal Appeals of Texas.
October 21, 1936.
Rehearing Denied February 10, 1937.

        Commissioners' Decision.
        Appeal from District Court, Freestone County; Lex Smith, Judge.
        Marion Rogers was convicted of the offense of theft of two hogs, and he appeals.
        Affirmed.
        H. L. Williford, of Fairfield, for appellant.
        Lloyd W. Davidson, State's Atty., of Austin, for the State.
        
        KRUEGER, Judge.
        The appellant was convicted of the offense of theft of two hogs, and his punishment was assessed at 
confinement in the state penitentiary for a term of two years.
        Appellant's first contention is that the testimony is insufficient to warrant and sustain his conviction. 
The State proved that on the night of December 29, 1934, Ausencio Dabila lost two hogs. The next 
morning he instituted a search for them. He found tracks of the hogs leading from his lot, where they 
were in the habit of bedding at night, down into the pasture, through a gate, and onto the highway. He 
also found on each side of the hog tracks and following the same human tracks indicating that one person 
drove the hogs while some person on either side of them prevented their escape. The State further proved 
by Sam Lawrence, a self-confessed accomplice, that on Saturday afternoon appellant sent a note to him in 
which he requested Lawrence to meet him in the Mexican's pasture, that he was ready to get the hogs. 
Said witness further testified that he and A. T. Reed met the appellant at the designated place; that they 
drove the hogs to the home of the witness, where they slaughtered them in the early part of the night; 
that the next morning some parties from Palestine, accompanied by the appellant, came to the home of 
the witness, purchased the carcasses, loaded them into an


Page 256

automobile, and left. The State also proved by Corrine Lusk and Jimmie Lawrence that on the night of the 
commission of the offense they attended a show at Oakwood; that when they returned to the home of 
Sam Lawrence that they saw the appellant there in the yard washing his hands in a washpot. It occurs to 
us that the State made a complete case against the appellant by the testimony of Sam Lawrence, the 
accomplice, who was corroborated as to certain facts and circumstances testified to by other witnesses 
which we deem sufficient to justify and sustain the conviction.
        Appellant by a number of exceptions complains of the action of the trial court in overruling his 
motion for a new trial based on newly discovered evidence. The bills of exception disclose that the parties 
who were in possession of the newly discovered evidence were witnesses in attendance at court and their 
names appeared upon the back of the indictment, but appellant did not deem it necessary to inquire of 
them, or either of them, either before or during the trial, what they knew relative to the commission of 
this offense. Moreover, it was shown by the testimony of the State that Annie Lou Lusk was at the home 
of Sam Lawrence on the night of the alleged theft, yet no effort was made to ascertain from her whether 
she saw the appellant at Lawrence's home, or what she knew about the transaction under investigation; 
neither has he assigned any reason why he did not make some inquiry. It is our opinion that the bills of 
exception fail to disclose that degree of diligence necessary which would authorize this court to reverse 
this case. In support of the views herein expressed we refer to the case of Bullington v. State, 80 
Tex.Cr.R. 309, 190 S.W. 154; Powell v. State, 36 Tex.Cr.R. 377, 37 S.W. 322; Smith v. State, 31 
Tex.Cr.R. 14, 19 S.W. 252.
        The matters complained of in bill of exception No. 2 as to the manner and conduct of the county 
attorney in cross-examining the defendant's witness is not to be commended. However, the court 
withdrew the questions and answers from the consideration of the jury and instructed them not to 
consider the same for any purpose. Under the circumstances, we do not believe that the same constitutes 
reversible error.
        It is therefore ordered that the judgment of the trial court be, and the same is, in all things affirmed.
        PER CURIAM.
        The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court 
of Criminal Appeals and approved by the court.
On Rehearing.
        HAWKINS, Judge.
        In his motion for rehearing appellant insists that we were in error in the disposition of his bill of 
exception complaining of the cross-examination by the district attorney of appellant's witness Thompson.
        We have frequently held that an improper question may be asked of an accused, or of a witness, in 
such manner as to get before the jury a prejudicial fact which would call for reversal. See 42 Tex. Jur. p. 
203, and cases there cited. The bill of exception complaining of the cross-examination of Mr. Thompson 
has been again examined. We find many questions in the bill which do not appear improper, and none of 
them is thought to demand a reversal in view of the court's action in withdrawing the questions and 
answers from the jury.
        For the first time appellant in the motion for rehearing suggests that there is in the record no 
sufficient proof of venue. The prosecution was for theft of hogs from Ausencio Dabila alleged to have been 
committed in Freestone county. The evidence shows that the hogs were taken from a point near the lot 
gate of the owner, who testified that he did not know whether he lived in Freestone or Leon county. 
However, Mr. Hester, the constable, testified that he knew where Dabila lived in Freestone county about 
two or three hundred yards from the Leon county line. This would appear to sufficiently fix the venue. 
Even if that were not true, article 847, C.C.P., provides among other things that this court "shall presume 
that the venue was proven in the court below * * * unless such matters were made an issue in the court 
below, and it affirmatively appears to the contrary by a bill of exceptions approved by the judge of the 
court below, or proven up by by-standers, as provided by law, and duly incorporated in the transcript." In 
the absence from the transcript of any showing that such issue was raised in the lower court, the statute 
referred to disposes of the question of venue.
        The motion for rehearing is overruled.