The appellant was tried and convicted of the offense of theft, and his punishment assessed at confinement in the state penitentiary for a term of two years.
The facts proven upon the trial are substantially as follows: On the 25th day of April, 1932, at about seven P. M. Edmund Blanton, a son of J. E. Blanton, and a neighbor boy by the name of Bill Henry drove a horse and buggy belonging to J. E. Blanton into the town of Santa Anna and tied it to a hitching rack while they participated with other members of the National Guard in drill exercises; that about nine P. M., when they started to go home, they discovered that the horse and buggy were gone. They made some examination of the *Page 347 ground where the horse had been hitched and found a buggy track leading away from there in a southerly direction; they followed this track some short distance but having no light, they lost it and then went home and informed Mr. J. E. Blanton, the father of Edmund, of what had happened, whereupon J. E. Blanton went to the place where the horse had been hitched and followed the track some six or seven miles out of Santa Anna and then secured the services of Mr. May to assist him in tracking the horse and buggy, which they did, and the track of the horse and buggy led them to the premises of the defendant, where they found the buggy and harness in the lot and the horse in the pasture of the defendant. The defendant, upon being questioned as to how the horse and buggy came to be at his home, said that he did not know how it came there; that when he came home the night before at about twelve o'clock P. M., he found the horse hitched to the buggy standing at his gate. The defendant testified in his own behalf admitting having been in the town of Santa Anna on the night of April 25, 1932, but denied going near where the horse was hitched; that he left Santa Anna that night about eight o'clock on foot and after walking some distance two young men in a car overtook him, picked him up and carried him to within six or seven miles of his home, where they let him out, and from there he, the defendant, walked to his home, arriving there about twelve o'clock that night; that when he arrived at his home he found the horse and buggy at his front gate; that he unhitched the horse, put the buggy and harness in the lot, and turned the horse out into the pasture.
By bill of exception No. 1 the appellant complains of the action of the trial court in overruling his application for a continuance based upon the absence of several character witnesses. It has been repeatedly held by this court that it is within the sound discretion of the trial court to grant or refuse an application for a continuance based upon the absence of character witnesses. See Yarborough v. State, 147 S.W. 270; Butler v. State, 288 S.W. 218. No abuse of discretion being shown, the appellant's contention is overruled.
The appellant objected and excepted to paragraph 3 of the court's main charge because it is a charge upon the weight of the evidence. Said paragraph of said charge reads as follows: "If from the evidence in this case, you believe the defendant found the horse and buggy in question on his premises, without any knowledge as to how it came there or by whom it was placed upon said premises, you will find the defendant not guilty, or if you have a reasonable doubt as to whether this *Page 348 defendant fraudulently took possession of said horse with the intention to deprive the owner of its value and to appropriate it to the defendant's own use and benefit, you will find the defendant not guilty." The court overruled said objection and the appellant excepted. If said charge of the court is not free from criticism, yet part of the charge correctly submitted the defendant's defense. However, the objection is not sufficiently definite to make reasonably apparent to the trial judge the fault complained of when the charge complained of and the objection are considered together. Article 658, C. C. P., provides that before the charge is read to the jury the defendant shall present his objections thereto in writing distinctly specifying each ground of objection. While no form of objection is prescribed, yet a general objection is not ordinarily sufficient to bring in review the action of the trial court in refusing to amend the charge. In the case of Gill v. State, 208 S.W. 926, it was held that the general objection that the charge in question was on the weight of the evidence was insufficient, when considered in connection with the charge, to make reasonably apparent to the trial judge the faults of which complaint was made. Considering appellant's objection in connection with the fact that a part of the charge complained of, if not all, was proper and adequately presented the defendant's defense, we are of the opinion that the objection was not sufficient to make reasonably apparent to the trial judge that the appellant was complaining because a portion of the paragraph of said charge was on the weight of the evidence. The appellant should have distinctly referred to and pointed out the objectionable part of the charge so that the court would have had an opportunity to amend his charge before submitting it to the jury. It is the opinion of the court that the objection addressed to the charge is too general and not sufficiently specific to separate the objectionable part, if any, of said charge from that which was proper and adequately presented the defendant's defense, and therefore the appellant's contention is overruled.
The other errors complained of appear to be without merit. It is therefore ordered that the judgment of the trial court be and the same is in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.