Gilleland v. State

White, Presiding Judge.

Ho bill of exception having been saved to the overruling of defendant’s application for continuance, he is not entitled to have the matter reviewed in this court. The last decision to this effect is in 'Scott’s case. (23 Texas Ct. App., 522.)

.There is but a single bill of exception in the record, and that was saved to the admission of testimony over objection of defendant. What the objection was is not stated in the bill. The rule is that the bill must set forth the objections which were interposed, and that objections not affirmatively presented are deemed to have been waived. (Bryant v. The State, 18 Texas Ct. App., 107, and authorities cited.) Independently of this rule, the evidence, we think, was clearly admissible as a circumstance going to show flight and an effort to avoid a’ trial by the defendant. Plight of a defendant after indictment, and after his release on bail or recognizance, by showing the forfeiture of the same, is a fact which may be proved by the State. (Hart v. The State, 22 Texas Ct. App., 563; Aiken v. The State, 10 Texas Ct. App., 610; Gose v. The State, 6 Texas Ct. App., 121.)

In the fourth paragraph of the charge, the court instructed the. jury that, “upon the trial of one charged with the theft of a horse, the possession of the horse without a written bill of sale containing a specific description of the horse is prima facie evidence against the accused that the possession is illegal.” Such an instruction has repeatedly been denounced by this court as decidedly erroneous, it being upon the weight of evidence. (Willeys v. The State, 22 Texas Ct. App., 408, and numerous authorities cited.)

A special instruction, given at the instance and request of defendant, it is true, did modify the vice of the charge, and perhaps might with some reason be held to have cured it. (Garcia v. The State, 12 Texas Ct. App., 336.) Still, this is mere speculation, at best, and, had an exception been reserved to it, notwithstanding the giving of the requested instruction, we would, under well settled rules, have been compelled to have reversed the judgment on account of the error.

In paragraph- two of the charge of the court, the jury were specifically and correctly instructed that, “when one charged with theft is found in possession of the stolen property, if he give a reasonable explanation of his posséssion of the property, it then devolves upon the State to show such statement to be false; otherwise the accused must be acquitted.” Applying this charge to the facts as proven on the trial and shown in the record, we find that when defendant was -first found in possession of the stolen animal by the deputy sheriff who was sent to arrest him, he told the officer that “he had bought the horse from aman who lived near Austin*. He did not say what the man’s name was, or the price he paid for the horse, or where he bought the horse.” This explanation in itself is entirely reasonable. Not only so, but defendant proved its truth by his witness Ricketson, who testified with minute circumstantiality to the transaction, when and where it took place, the name of the party who sold defendant the horse, and the price paid by defendant, together with the names of several other parties who were present and also witnessed the sale and purchase.

This explanation by defendant, and the testimony offered by him to support it, have not been disproved nor shown to be false. We are of opinion the verdict and judgment are against the evidence and charge of the court; wherefore the judgment is reversed and the cause remanded for another trial.

Opinion delivered January 7, 1888.

Reversed and remanded.