I. It was not error to admit in evidence the bill of sale from Osman to Helton, as its execution was proved by the testimony of Helton. Where the execution of an instrument of writing permitted or required by law to be recorded is proved when it is offered in evidence, the filing and notice required by article 2257 of the Revised Statutes is not required. It is only where such instruments are offered in evidence without proof of execution, that such filing and notice are required to render them admissible.
II. It was not error to allow the witness Helton to testify as to the brand that was on the cattle he purchased from Osman. This evidence tended to identify the animal alleged to have been stolen as one of the animals conveyed by Osman to Helton by the bill of sale, which bill of sale described the cattle conveyed as branded O S M, this being the brand of Osman as shown by the record of his brand, which ivas read in evidence by the State.
III. It was not error to admit in evidence the testimony of John McAnally and M. A. Greenup taken before an examining court. It was shown that said witnesses were beyond the limits of this State. It appears sufficiently from the certificate of the magistrate accompanying this testimony that when the same was taken the defendant was present, and had the privilege afforded him of cross-examining said witnesses. Ho particular form is prescribed by the law for the certificate of the magistrate to testimony taken before him as an examining court. We think the transcript of the magistrate in this case, considered in connection with the written testimony of the witnesses, shows a substantial and sufficient compliance with the law. (Code Crim. Proc., arts. 267, 772, 773, 774; Evans v. The State, 13 Texas Ct. App., 225.)
*6IY. It was within the discretion of the trial judge to admit testimony offered by the State after the argument of the cause had commenced, and the exercise of such discretion will not be revised by this court unless it clearly appears that such discretion has been abused. (Code Crim. Proc,. art. 661; Nolen v. The State, 14 Texas Ct. App., 474, and cases therein cited.) In this case the discretion confided by law to the trial judge was not abused.
Y. It was not error to overrule defendant’s application for a continuance. It failed to show sufficient diligence used to obtain the testimony of the absent witnesses, or sufficient excuse for not using diligence. It was uncertain and indefinite in its statements as to the diligence used. Purthermore, it failed to state, as required by the statute, that there was no reasonable expectation that the attendance of said witnesses could be secured during that term of the court by a postponement of the trial to some future day of said term. (Code Crim. Proc., art. 560; Strickland v. The State, 13 Texas Ct. App., 364.)
YI. This conviction rests mainly upon the testimony of the two witnesses McAnally and Greenup; Without their testimony the criminative facts proved would be wholly insufficient to support the verdict and judgment. As to the witness McAnally, there can be no question but that he was an accomplice in the theft of the animal, if in fact there was a theft committed by defendant. When we use the word accomplice in this connection, we do not mean that he was an accomplice as defined by articles 79 and 80 of the Penal Code, but that he was an accomplice within the meaning of that word as used in article 741 of the Code of Criminal Procedure. (Smith v. The State, 13 Texas Ct. App., 507; House v. The State, 16 Texas Ct. App., 25; Howell v. The State, Id., 93; Zollicoffer v. The State, Id., 312.) There was also evidence which tended strongly to show that the witness Greenup was likewise an accomplice within the meaning of said article 741. By the charge of the court the jury were instructed as to the meaning of accomplice as technically understood, that is, as defined by articles 79 and 80 of the Penal Code, and that a conviction could not be had upon the testimony of such an accomplice or accomplices unless corroborated, etc. This charge was erroneous and insufficient, and had the same been excepted to, or a correct charge been requested, or had the error been called to the attention of the trial court in a motion for a new trial, or had the court omitted any charge whatever as to accomplice testimony, we would feel called upon to set aside the conviction; but the defendant seems to have been entirely satisfied with the charge *7of the court, and has urged no objections whatever to it, either in this or the trial court, and therefore the error we have mentioned in the charge is not sufficient ground for reversal. (Burke v. The State, 15 Texas Ct. App., 156.)
VII. While the principal evidence upon which this conviction was obtained is of a questionable character, and meagrely corroborated, still it is, if believed, legally sufficient to warrant the conviction; and the jury by their verdict have said that the testimony was credible, and this court cannot invade the province of the jury and pronounce it otherwise.
We find no error for which the conviction should be set aside, and the judgment is affirmed.
Affirmed.
[Opinion delivered April 18, 1885.]