Roberts v. State , 44 Tex. Crim. 267 ( 1902 )

Appellant was convicted of the theft of a horse and mule, and his punishment assessed at confinement in the penitentiary for a term of two years.

Bill of exceptions number 1 insists that the court erred in overruling the application for continuance. The continuance is based upon the absence of Jim McCarty, alleged to reside in King County, Texas. The record shows that appellant was indicted June 6, 1902, and on June 16th he made his first application for a subpoena for this witness. Appellant was tried on June 20th, some four days after he applied for the subpoena. It is probable that, if he had applied immediately upon indictment for the subpoena, the attendance of said witness could have been secured. Appellant expected to prove by said witness that in January, 1901, one Ise Roberts had a bay H+H mare and a black or dark mule in the town of Benjamin, and tried to sell them or trade them to the witness Jim McCarty. In order to show that this testimony was material, the application states that defendant would claim that he bought such a mule and mare from Ise Roberts in January. In the light of the record, we do not think this testimony is probably true, and hence we do not think the court erred in refusing the application for continuance.

Complaint is urged in the second bill to the court's charge on the question of ownership. The first count in the indictment alleged the ownership in Mrs. M.J. Owens; the second in J.L. Highton. The court properly instructed the jury that, if they found the ownership in either of these as alleged in either count, they were authorized to find the ownership proved as alleged. This is a correct charge. Key v. State, 37 Tex. Crim. 511.

The third bill complains that the court erred in presenting appellant's defense of bona fide mistake of fact as to the authority to take the animal, under a claim of right, having purchased from Ise Roberts. An inspection of the charge of the court shows that he told the jury, if appellant thought he had a right to take up the animal after the purchase from Roberts, he was entitled to an acquittal; and further told the jury that, if they had a reasonable doubt as to whether he had the right, they should acquit. This charge is correct. Young v. State,34 Tex. Crim. 290.

The fourth bill complains that the court erred in limiting the evidence of other crimes that appellant had been charged with to the purpose of affecting appellant's credibility as a witness, instructing the jury to regard the same for no other purpose whatever. The charge of the court is in proper form and is correct. Hutton v. State (Texas Crim. App.), 33 S.W. Rep., 969.

Bill number 5 complains of the court's charge on recent possession of stolen property. The charge is a copy of the one approved in Wheeler v. State, 34 Tex.Crim. Rep..

The sixth and seventh bills complain of the court's refusal to give special charges upon appellant's claim of right to take the property alleged to have been stolen by him. These charges were covered by the main charge of the court.

Appellant insists in the eighth bill that the court erred in refusing the special charge on circumstantial evidence. Appellant confessed the taking, but insisted that he did not take with a fraudulent intent, but under a claim of right. This removes the case from the realm of circumstantial evidence, the only issue being as to the intent. Huffman v. State, 28 Texas Crim. App., 174; Russell v. State, 38 Tex.Crim. Rep..

We have carefully reviewed appellant's other assignments of error, and find none of them are well taken. The charge of the court properly and amply presented all the law applicable to the facts of this case.

No error appearing in the record, the judgment is affirmed.

Affirmed.