Brooks v. State , 26 Tex. Ct. App. 184 ( 1888 )

Willson, Judge.

This conviction is under the act of March 8, 1887, which reads: “Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use, with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as prescribed in the Penal Code for the theft of like property.” (Willson’s Cr. Stat., sec. 1292.)

I. We perceive no error in the action of the court refusing defendant’s application for a continuance. It fails to show proper diligence to obtain the testimony of the absent witness, or sufficient excuse for such failure. Furthermore, the testimony of said witness, as stated in said application, would not be admissible in behalf of defendant, the same being as to defendant’s declarations with respect to his authority to sell the' horse, and not within the rule of testimony explanatory of possession of recently stolen property, nor within the rule of res gestse, but being self serving declarations merely.

II. It was proved by the State that the defendant borrowed the horse in question from Walker, the owner, in the Indian Territory, and rode said horse into Cooke county, Texas, where he sold him as his own property, and without the consent of the owner. These facts, coupled with a fraudulent intent to convert and appropriate said property to his own use, constitute the offense denounced by the statute and charged in the indictment. (Taylor v. The State, 25 Texas Ct. App., 96.) With respect to the fraudulent intent essential to constitute the offense, there is sufficient evidence to warrant the conviction, and the charge of the court fully, clearly and correctly submitted that issue, and the law applicable thereto, to the jury, instructing that such fraudulent intent must have existed in the mind of the defendant at the time he sold the horse. It was. not error, therefore, to refuse the special instruction requested by the defendant.

Opinion delivered October 20, 1888.

III. . Defendant offered to prove by Walker, the owner of the horse, that, the first time he saw said Walker after having sold said horse, he offered to pay said Walker for said horse, and to prove also by said Walker the conversation then had between them; the bill of exception, however, fails to show the purport of such conversation. This proposed testimony was rejected, and in this ruling we do not think the court erred. Said testimony is not within the rule which renders competent the explanation of the defendant of his possession of recently stolen property. His lawful possession of the horse was not questioned; It was the fraudulent conversion of the property that was in issue, and the acts and declarations of the defendant, not res gestae, but occurring long subsequent -to the conversion, were not competent evidence in his behalf.

We have found no material error for which the conviction should be set aside, and the judgment is affirmed.

Affirmed.