At the fall term of the District Court of San Patricio county, and prior to the fourteenth day of September, 1883, appellant was convicted of the theft of a mare, whose owner was unknown to the grand jury, the same being an es-tray.
The day on which the trial commenced is not given, but from the date of the filing of the statement of facts, and the caption, it was in September, and prior to the fourteenth of that month, 1883. On the fifteenth day of March, same year, the last attachment issued for the absent witnesses named in the last application for a continuance. It appears that these witnesses had been attached by the sheriff, and in company with that officer were on their way to court, when they learned that the court had adjourned; whereupon they returned to their homes in Uvalde county. This occurred at the spring term of the court, by virtue of the attachment which issued on the fifteenth day of March. Ho other process issued for either of these witnesses. Does the record show diligence? Clearly not. Something over five months had elapsed before the trial since any step had been taken to obtain the attendance of these witnesses. We are of the opinion that the court did not err in overruling the motion to continue the cause.
Defendant alleges also the following errors for a reversal of the judgment.
1. It is insisted that the indictment does not charge that the mare was fraudulently taken. Upon an inspection we find that it does.
2 and 3. That the evidence fails to show that the mare was taken or appropriated in San Patricio county. The first was sufficient, to wit, the taking, which is most evidently shown.
4. That there is a variance in the indictment and proof, in this, that the averred value is fifteen dollars, while that proved is twelve or fifteen dollars. This is frivolous.
*6615. The court erred in refusing to give charge number one asked by defendant. This charge is as follows: “If the jury believe from the testimony that defendant put his brand on said mare in Bee county, then the offense was committed in Bee county, and the venue has not been proven unless the jury further believes from the testimony that defendant also took the mare to Bee county.”
This special charge was refused, the learned judge giving these reasons for so doing: “ Refused because, first, not correct as a legal proposition, the same depending upon the place of taking, not the subsequent brand alone, the latter being merely evidence of actual appropriation; the evidence shows the taking in San Patricio county, and probably the branding also.” We think the assignment fully answered in the explanation of the learned judge.
6. That the verdict is not supported by the evidence. We are of the opinion that every allegation in the indictment, the venue included, was most clearly established by the proof.
While not objected to at any stage of the proceeding, and being beneficial to defendant, still we deem it advisable to call attention to that part of the otherwise unexceptionable charge, which authorizes the jury to convict the defendant of a violation of the Estray Law, under this indictment for theft. There are elements in the misdemeanor not contained in theft; nor is it included in the charge of theft. See this subject fully, and, I think, exhaustively discussed in the case of Williams v. The State, 12 Texas Court of Appeals, 395.
We have found no such error in the record as will justify a reversal of the judgment, and it is therefore affirmed.
Affirmed.
Opinion delivered October 27, 1883.