This is a conviction of cattle theft. Appellant reserved a bill of exceptions to the action of the court in refusing his application for a continuance of the cause. There is no Statement of facts in the record. As set forth in the bill of exceptions, the facts proposed to be proved by the absent witnesses may appear to be material; but upon the trial the evidence may have shown conclusively that they were not material, and if material, were not probably true. This being the case, we can not revise the action of the court refusing the continuance, in the absence of the facts.
2. Appellant objected, reserving his bill of exceptions to the State proving, by several witnesses the custom of stockmen in regard to selling beeves, etc. This evidence was introduced to show that neither the defendant nor his mother would have kept the animal in question as long as it was shown they did. Whether this was material or important testimony we know not. It may have been harmless.
3. Defendant proposed to prove by Colvin Musgrove that "on or about the _____ day of __________, 188___, his (defendant's) deceased stepfather talked about the animal set forth in the indictment, claiming the same as his own," etc. This was not competent testimony, and, if material, may not have been probably true.
4. The facts proposed to be proved by James Lyons, as to what Musgrove said and did with reference to the animal in question, may have been material, but in the absence of the statement of facts, we can not determine that the facts were probably true.
5. The objection to the charge of the court, that it failed to submit to the jury the question of diligence used by the grand jury in ascertaining the owner of the alleged stolen animal may or may-not have been well taken. If the State failed to prove proper diligence on the part of the grand jury to ascertain to whom the animal belonged, then the court should have submitted that question to the jury. On the other hand, if such proof was made, then there could have been no injury resulting to defendant in failing to submit such a charge. When the evidence on this subject is of such a character as to present an issue on the subject of diligence, the court should submit it to the jury; but in this case the evidence may have proved conclusively that proper diligence was used, or the facts on the trial may have established beyond question that the owner of the animal was unknown, as alleged. We can not assume that there was any testimony in this case tending to show that defendant disposed *Page 692 of the animal through an honest mistake, believing the same to be the property of his mother; hence, in the absence of the statement of facts, a charge upon mistake may not have been called for by any evidence in the case. The judgment is affirmed.
Affirmed.
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