After so many repeated decisions to the effect that the overruling of an application for a continuance will not be revised on appeal unless a bill of exceptions was specially reserved to the ruling, it does appear to us that it is time the rule should be understood, and that counsel and parties should no longer insist in encumbering records and briefs with such useless and worthless applications. There never has been, that we are aware of, and never perhaps will be, an exception to this rule until and unless there is some direct legislative action ordering otherwise.
We will state the rule fully again, as it may be found- enunciated in Gaston v. The State. It is as follows: “Without a bill of exceptions reserved to the overruling of an application for a continuance, the ruling will not be revised. A recital in the judgment that the application was overruled and defendant excepted will not answer in lieu of a specific bill of exceptions. (Nelson v. The State, 1 Texas Ct. App., 41, and authorities cited.) In the rules for the government of proceedings in the District Court it is expressly provided that the rulings of the court upon applications for continuance, and for change of venue, and other incidental motions, and upon admission and rejection of evidence, and upon other proceedings in the case not embraced in Rules 53 and 55, when sought to be complained of as erroneous, must be presented in a bill of exceptions signed by the judge and filed by the clerk, or otherwise made according to statute, and they will thereby become a part of the record of the cause, and not otherwise.” (Rule 55a; Gaston v. The State, 11 Texas Ct. App., 143.) In the face of these decisions and the rule so positive and certain, it is worse than idle to discuss questions arising upon applications for continuances not coming strictly within the rule.
On the trial the defendant introduced in evidence a bill of sale of the alleged stolen animal, executed to him by one Freeman, and there was other evidence adduced by him to the same effect as to the purchase. Upon this phase of the defense the court instructed the jury: “ 3. If you believe from the evidence that defendant did take and have possession of a yearling such as has been described, and you further believe from the evidence, or have a reasonable doubt as to the same, that the yearling so taken by him was not the property of Levy Fowler, or that, if it was, he took it under an honest and bona fide claim of ownership by reason of its being his own property, either by *369purchase from some one else or otherwise, you will find him not guilty.”
This charge is complained of in the motion for a new trial, and is also assigned as error. Defendant relied upon a purchase. A fair construction of the charge is that his purchase would not entitle him to an acquittal of theft unless the purchase endowed him with an honest and bona fide claim, to the property. Is this a correct rule of law applicable to theft ? Suppose the property had been stolen by another, and defendant knew that fact, but purchased the animal notwithstanding, does that make him guilty of theft P Theft is the fraudulent taking of property, and to inculpate a party in the crime of theft it must be shown that he either took, or had some connection with, or complicity in the taking of the property. It does not suffice that, subsequent to the taking and without complicity therein, but that with a knowledge that it had been stolen, he aided the taker to dispose of it (Cohea v. The State, 9 Texas Ct. App., 173); or that he himself purchased it from the thief. Under such a supposed state of facts he might be liable for receiving stolen property, knowing it to be stolen, but not of theft. As was said in McAfee’s case: “ If the evidence fails to connect defendant with the taking, unless by recent possession, this recent possession may be accounted for by proof of purchase, whether in good or bad faith, and defendant may, in law, urge the purchase, notwithstanding he had full knowledge that the seller had stolen the property.” (McAfee v. The State, 14 Texas Ct. App., 668; Clayton alias Cobb v. The State, just decided; ante, 348.)
If the evidence should tend to show an acting together, conspiracy or complicity in the taking, between the vendor in a bill of sale and a defendant charged with the theft, then, indeed, it would not only be right but highly proper for the court to submit the bona fides of the bill of sale, that the jury might ascertain and find whether or not it was a sham or device conceived to cover up and avoid the crime of theft. (Clark’s Crim. Law of Texas, p. 262 and note.)
Other errors are assigned, but they are not presented on the record in a manner requiring a discussion by us. Because we are of opinion that the court erred in the paragraph of the charge above quoted, and that said charge was not only calculated to *370mislead the jury but also to prejudice the rights of defendant, the judgment is reversed and the cause remanded.
Opinion delivered February 2, 1884.Reversed and remanded.