Appellant was convicted in the District Court of Washington County, of the theft of certain hogs, and his punishment fixed at two years confinement in the penitentiary.
When the case was called, appellant asked for a continuance, because of the absence of the witnesses Black and Patterson. The indictment was returned in March, 1919. It does not appear from the record that any process was taken out for the witness Black until March, 1920, and the subpoena then issued was not served. This *Page 123 will not be sufficient diligence. It is not shown that any process had ever been issued for the witness Patterson. Nothing appears in the record as showing any effort to obtain the testimony of this witness, except that it is stated in the application for continuance, that said witness was instructed by the court at the September, 1919, term, to be in attendance upon this trial at the March term, 1920. A witness may be present without process, and receive an instruction from the court to return on a day certain, but unless he be under process, this would not be a showing of diligence. The continuance was properly refused.
It is strenuously urged that the verdict was without support in the testimony. Jane Thomas lost six hogs on or about December 3, 1918. Said hogs consisted of a sow, and five yearling shoats, which had been raised by her, and ranged near her home until they disappeared, as stated. Said hogs were marked with a smooth crop and split and underbit in the right ear, and an underbit in the left ear. When they were lost they were in good condition for killing. Several days after the disappearance of said hogs, according to the constable, who went to appellant's house looking for the meat, he found a big box of meat, containing about forty-six pieces, in a house on appellant's premises. The officer found hog-hair in front of the house, where it appeared that butchering had been done, and appellant said that was where he butchered the shoats. Not satisfied with the quantity of hair at said place, the officer went back the next day, searched further, and behind appellant's house, and in a corner of an ell thereto, he found a lot of red and black hog-hair. He asked appellant why he butchered there, and the reply was that the wind was high. Jane Thomas positively identified the meat found on appellant's premises by the constable, as that of her hogs, her identification appearing to be based on various matters, but principally because of the hair that had not been well cleaned from the meat, and each piece of which she identified as hers. She also said that on the old sow's middling, the tit was there. A further circumstance was that her hogs consisted of five females and one male, all being black and red spotted. She seems to have taken the meat from appellant's house, as hers, without any objection or resistance from him. The uncontradicted testimony shows that the meat came from one large hog and other smaller ones.
When the officer went to the house of appellant, searching for the hogs, or meat, a few days after the hogs of Jane Thomas were missed, and found the box of meat, he was unable to find any heads or ears of any of the butchered hogs. Appellant, when inquiry was made about this fact, said they ate them first. Appellant was shown to have about the same number of hogs after he had butchered, as before. His claim was that he had lost a couple of sows a few years before this occurrence, and he had found a bunch a wild hogs, and butchered those whose meat was found in his house. It was in testimony that *Page 124 neither of his runaway sows were partly or wholly sandy or red, but that they were black, or black and white. The hair found in his yard, and the ell of his house, and that on the butchered meat, was black and sandy. The neighbors who testified in the case seemed to be well acquainted with the hogs of Jane Thomas, and stated that they had not been seen since the time she said they were missing. Appellant lived about three-fourths of a mile from Jane Thomas. He did not take the stand, nor did his son, or any other witness in his behalf. The court charged the jury fully upon circumstantial evidence, and the charge seems to have been so acceptable to appellant that no objection or exception was taken thereto.
We have carefully considered this evidence, and are unable to say that the jury were without any testimony upon which they arrived at the conclusion of appellant's guilt. The witnesses were before the trial court and the jury, who are made the persons to pass upon their credibility and the weight of their testimony — the jury primarily, and the trial court in passing upon a motion for new trial — and both of these have passed upon the weight and sufficiency of the testimony unfavorably to appellant. While the testimony of Jane Thomas, identifying the meat by the hair thereon, might not be sufficient in itself, there were many other circumstances in evidence reasonably calculated to lead the jury to believe that appellant was the party who took the hogs.
The judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. November 3, 1920.