Appellant was convicted of the theft of a horse, and his punishment assessed at confinement in the penitentiary for a term of two years.
He applied for a continuance for the testimony of Bob Matthews, by whom he expected to prove that about the middle of January or first of February, while hunting horses for State's witness Willis, Bob Matthews gave him a description of a mare suiting that mentioned in the indictment, and represented her to be the property of his (Matthews') kinsman, and requested appellant to take up the mare for him, promising to pay appellant for his trouble in so doing. Viewed from the standpoint of the motion for new trial, we do not believe the court erred in refusing this application. The facts show that appellant told witness Willis that he got the mare in a "pocket" near Stith, in Jones County, and that Bob Matthews told him the mare was an estray, and that she belonged to a relative of his (Matthews), who was then in Arkansas, and further told appellant that she would die for water if some one did not take her up, but that he (Matthews) did not intend to have anything to do with her. Appellant further stated that he was going to sell the mare, but was going to sell her as an estray. Witness advised him to estray the mare before he handled or disposed of her. This appellant declined to do, stating that he would tell whoever bought the mare that she was an estray. Appellant told his father-in-law, Daniels, that he had bought the mare from a man in the road west of Abilene. This occurred about the middle of February, the mare having been taken up about the 1st of February. He stated to Deputy Sheriff Peevy, when arrested, charged with the theft of the mare, that he did not steal the animal; that he took up the little brown mare (the one in question) to keep her from starving for want of water, and subsequently bought her. After keeping the mare a few days, he rode her from Abilene into Eastland County, to the town of Cisco, where he *Page 241 traded her and another horse to witness Mayhew, stating his name was Bob Matthews, and that he was from Sweetwater, and the reason he desired to trade the two horses was because the gray horse had given out. He further stated at the time of the trade that he was going to Fort Worth, but upon leaving the town of Cisco he went in the opposite direction. The witnesses John and Thomas McClure testified to the same facts as did the witness Mayhew. It was shown by Swann, sheriff of Jones County, and J.W. Mathis, that they had never heard of such a man as Bob Matthews in that county. Swann stated that he had been sheriff and tax collector of Jones County for eight years, and was well acquainted in that county and around Stith, the place appellant stated he found and took up the mare. Appellant introduced no testimony. Under the state of the record, the testimony is not probably true. In fact, as we understand this case, this application for continuance does not suggest itself as meritorious.
Exception was reserved to the charge because it failed to submit the law applicable to circumstantial evidence. Appellant's statement that he took up the mare relieves the court of charging this phase of the law.
The court charged the jury in regard to the reasonableness of the account appellant gave of his possession of the animal in accordance with the principles laid down in Wheeler v. State,34 Tex. Crim. 350. The charge is therefore sufficient on this question.
It is contended that the court should have further charged the jury, in substance, that, if they believed he bought the animal, they should acquit. The evidence bearing upon this phase of the case is that he bought the animal from a party whose name is not given, some time after he had reduced her to possession. If in fact he did purchase her, it was subsequent to his taking her from the range, and could have no relation to the original taking, or relieve the original taking of any of its consequences. The theft was committed prior to his alleged purchase, and his statement in regard to the purchase, under the facts, is not a reasonable account. The charge, as given, is sufficient on this phase of the case.
We are of opinion there was no error committed on the trial, and the judgment is therefore affirmed.
Affirmed.
ON MOTION FOR REHEARING.