Brookin v. State , 26 Tex. Ct. App. 121 ( 1888 )

Willson, Judge.

I. It can not avail the defendant against this prosecution that he was arrested by the sheriff of Wilbarger •county, Texas, in the Indian Territory, without lawful authority, and brought into this State and confined in the jail of said Wilbarger county to be tried for the offense of which he has been convicted. A person accused of crime committed in this State may be tried by the courts of this State for such crime, although he may have been kidnapped in another State or Territory, and brought from thence to this State against his will and without lawful authority. (State of Iowa v. Ross and Mann, 21 Iowa, 467; Dow’s case, 18 Penn. State, 37; Ker v. Ill., 9 Crim. Law Mag., 201, and other decisions there cited.)

II. There was no error in refusing defendant’s application-for a continuance, as sufficient diligence had not been used to-obtain the testimony of the absent witnesses; nor does it appear to us, in view of the evidence adduced on the trial, that said absent testimony is probably true.

III. It was not error to allow the State to have the witness Davidson explain why he went to Addison’s house where the defendant and others, and the stolen horses, were seen by him. Such explanation was proper and legitimate for the purpose-of rebutting any inference that might arise against the witness because of his movements and associations on that occasion.

IV. It was not error to refuse to permit the defendant to cross examine the witness Davidson with respect to a prosecution at one time pending against said witness for cattle theft. At least it was not such error as this court will revise, it not appearing that the trial court abused its discretion to the injury of the defendant’s rights. The extent and character of a cross-examination is left largely to the discretion of the trial judge, and the exercise of such discretion will not ordinarily be revised by this court. (Willson’s Crim. Stats., sec. 2511.)

V. We have examined carefully the charge of the court, in the light of the objections and exceptions made and reserved to it, and we are unable to perceive that it is erroneous in any particular, when viewed with reference to the facts proved on the trial. The instruction explaining the rule as to circumstantial evidence is in the usual form, which has repeatedly been held sufficient. The instructions relating to possession of recently stolen property, and to the evidence concerning the theft of another horse than Garter’s are pertinent and applicable to the peculiar facts of this case, and, in our opinion, they embody the law of the case correctly.

The evidence sufficiently shows that the defendant acted together with other parties with respect to the stolen horses. He was seen in the personal and exclusive possession of one of the horses, recently after the theft, and was using the same as his own property. He was in company with the party who had possession at the same time of the other horse, and left the county with such party, and was afterward seen in distant* counties with said parties and said horses. There is other evidence in the case besides possession of the stolen horses tending strongly to show defendant’s guilt of the theft of both horses, acting together with other parties. When the witness Davidson and another person found the. parties and the horses, said parties fled, and they did not stop until they ascertained that Davidson and his companion were their acquaintances and supposed friends. They did. not remain in, or allow themselves to be seen in, the neighborhood of the theft, but immediately left that county and went to a distant county with the horses, and changed the brands on said horses. These being the facts of the case, there is, in our opinion, no error in the charge .of the court, and the special instructions requested by the defendant were properly refused.

Opinion delivered October 13, 1888.

We have considered other questions presented in the record, but, deeming them to be unimportant and without substantial merit, we do not discuss them. We have discovered no error in the conviction, and the judgment is affirmed.

Affirmed.