Mask v. State , 34 Tex. Crim. 136 ( 1895 )

DAVIDSOST, Judge.

Conviction for cattle theft, punishment being assessed at two years in the penitentiary. The indictment alleges the theft of one head of cattle from L. F. Wilson. The evidence shows, if guilty, appellant took two calves. The two yearlings sold by Bibles to Buck Mask, and delivered to Lum Mask for Buck Mask, were not the calves in controversy upon the trial of this case, as shown by the record before us. The criminative facts are: (1) Some person stole a couple of calves from the possession of L. F. Wilson. (2) These calves, shortly after being taken, were seen in defendant’s field, each necked to another calf.. (3) They bore the brand of the appellant, and were not branded when taken.

When the cause was called for trial, appellant moved a continuance for two absent witnesses, namely, Damrow and Warnica, by whom he expected to prove, in substance, that Chesher, the only State’s witness who incriminated appellant, himself placed the brand upon the calves and put them in appellant’s field. Application was overruled. On the trial, over objection, by appellant, the State proved by the father of the absent witness War nica that he was an unpardoned convict, and had left the county and gone, the father believed, to the Indian Territory.

In passing upon the probability of obtaining the absent witness, or the probable truthfulness of his evidence, if present, we have serious doubts if such evidence is admissible. If either party, as the case may be, had a record of the conviction of the witness, or was properly informed—that is, by legal evidence—that the witness was in the penitentiary, then the court would be justified in refusing the application. Bnt here the witness is at large, may have been pardoned without the father’s knowledge, or may not have been convicted of a felony. At least, there is better evidence of such facts, to wit, the record of the conviction. Had he been present, upon the objection of the State that he was incompetent to testify, the father’s evidence would not have been competent to prove the incompetency of the witness. We are not passing upon the ruling of the court refusing the continuance, but allude to these matters for the purpose of presenting the objections urged to the introduction of the application for such continuance in evidence before the jury. How, there was no admission of guilt, or any fact tending to establish guilt, set out in the application. The object of the State was not to prove a criminative fact, but only to place before the jury the fact that the witness was ’a convict. This could not be done. Its only office was to prejudice the jury adversely to appellant.

With reference to the action of the court in overruling the continuance, we have to say that it may not arise on another trial, and we pretermit discussion of that question. We think, however, it ought to have been granted.

The appellant requested a charge instructing the jury that the burden of the proof was upon the State, and did not shift to the defendant. This was refused. This is not only the law, but applied with peculiar force to the facts in this case.

Evidence was received to the effect that at the same time appellant had stolen two calves. Ho objections were urged to its admission, but if urged, should not have been sustained. But the court failed to limit the effect of this testimony. This should have been done. One of the animals was a bull and the other a heifer, and both belonged to the same man. The indictment averred the theft of one animal only.

Eor the errors indicated, the judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.