McVey v. State , 23 Tex. Ct. App. 659 ( 1887 )

White, Presiding Judge,

ft has been held repeatedly by this court that an indictment for theft of animals is valid when the allegation is that the owner is a person whose name is to the grand jurors unknown. (Mackey v. The State, 20 Texas Ct. App., 603, and cases cited.)

We are of opinion that the evidence in this case is sufficient. Appellant claimed to have bought the horses, and to have received a bill of sale for them, but this bill of sale was never shown to nor seen by his witnesses, nor was it exhibited as evidence at the trial, nor shown to have been lost or destroyed. Moreover, when the witness Morrell sent the defendant word “that unless he showed up a clear bill of sale to those horses he must take them away ” from his, Merrell’s place, defendant did not show his bill of sale, and took the horses away.

The newly discovered evidence proposed in the motion for new trial is improbable as to its being newly discovered, because the proposed witness lived, and had lived for eighteen months, in the neighborhood of defendant. The case had before been tried in court, and it is not reasonable that the witness should have heard nothing of it, and not have apprised the defendant of what he knew, if, in fact, he knew what it is claimed he' would swear. Sufficient diligence and probable truth do not appear with reference to this newly discovered evidence.

Objections to the charge of the court are not maintainable. As to the refused instructions, the one with regard to taking up and using an estray, without complying with the law regulating estrays, certainly could have no application where the facts show a taking, branding and sale of the animals by defendant. As to the law propounded in the other instruction, it was fully covered by the general charge.

Opinion delivered June 22, 1887.

We have found no reversible error, and the judgment is affirmed.

Affirmed.