Appellant was convicted of horse theft and his punishment assessed at five years. There are but three questions that need be considered:
1. Did the court err in overruling the application for continuance? The absent witness, T.Z. Davis, would testify "he saw defendant purchase the alleged stolen horse, for a valuable consideration, in Fort Worth." This application is too indefinite to be considered. The facts, not mere conclusions, should be set forth. Rollins' case, 32 Tex.Crim. Rep..
2. The evidence is clearly sufficient to warrant the conviction. Appellant was seen at a railway station in Johnson County, two miles from where the horse was stolen, that night. He had no business of any kind there. On the morning of the third day he was trying to sell the horse in Denton — where he stated to one that he had purchased the horse in the Indian Territory; to another, that he bought him in Denison from Davis or Evans. Again he stated he had bought it in Fort Worth from Flynn, and Davis was present. On the trial he took the stand and stated that as soon as lie bought the horse he started for the *Page 91 Indian Territory, but had been riding around hunting for work. He admitted he had slept out in the woods, but claimed to have lost his money accidentally. The court did not err in overruling the motion for a new trial.
3. Appellant claims that the court erred in refusing his special instruction to the effect that if D.C. Lay had the actual care, control, or management of the horse, and loaned the same to B.B. Mathis to use in the discharge of his business, and it was then stolen, the State must show the want of consent of Mathis to the taking. The facts show that the stolen horse belonged to one Fowler, who left the neighborhood, leaving his horse in charge of D.C. Lay; that on Wednesday night, August 2, 1893, Mathis borrowed the horse to ride to church, two miles distant, and return, and the horse was stolen while at the church. The court charged that under such a state of facts the horse would be deemed to be in the possession of D.C. Lay at the time it was stolen. The Code declares that "the possession of the person unlawfully deprived of property is constituted by the exercise of the actual control, care, or management of the property, whether the same be lawful or unlawful." Penal Code, art. 729. To constitute possession, mere temporary custody is not sufficient; there must be combined with it the control, care, and management of the property. Willson's Crim. Stats., sec. 1273. As said in Bailey's case, 18 Texas Crim. App., 427: " 'Possession' and 'custody' are not convertible terms, under the Code; and if property, at the time it is taken, be in the mere temporary custody of a ward, servant, or other person, the indictment need not allege the possession to be in such temporary custodian." It therefore follows that the want of consent of such custodian need not be proven. We find no error in the charge given, or in refusing the special charge.
The judgment is affirmed.
Affirmed.
DAVIDSON, Judge, absent.