Appellant was convicted of the theft of $35 from one Tucker Miller, and sentenced to five years in the penitentiary, from which judgment he appeals.
1. Appellant complains that the court erred in overruling his application for a continuance, on account of the absence of Tom Jackson, who, witness said, was then to be found in Harris County. The application does not state whether it is the first or second application, but, conceding defendant has shown due diligence, we can see no error in overruling it. The witness Tom Jackson was not present the night before, when defendant handed Tucker Miller his envelope, which defendant then claimed to contain the whole $70; and at the very time when Tucker says defendant took out a portion, a $10 bill may have been dropped on the ground, and may have been picked up by defendant next morning; still that would not prove defendant had not taken the three other bills for which he stands indicted. The statement of facts further shows that the witness Tucker testified, that when he demanded his money — the $40 — defendant handed him a $10 bill, stating that he had picked it up that morning at the very place defendant was standing the night before, and it had been stepped upon. The application did not say that the witness Jackson would prove that the bill was muddy.
2. The court did not err in permitting Jackson to prove that he had lost four $10 bills. We think their value was sufficiently proven.
3. We see no objection to the remarks of the district attorney. On the contrary, they were pertinent. There was no allusion to the refusal of the defendant to take the stand; but, certainly, where $10 bills are with good reason alleged to be stolen by the defendant, and the officer arrests and searches him, and finds $10 bills hidden in his shoes, and $5 in his hat band, it certainly demands some explanation on his part. Neither do we think there is anything in the bills being changed in appearance since they were taken from the witness Tucker Miller.
4. The special charge asked was sufficiently covered by the general charge, and its refusal was not error. The court charged: "If you believe Jackson took the money with intent to take care of it for Miller, and without the fraudulent design to appropriate it, though he afterwards formed the fraudulent design and executed it, he can not be convicted under the indictment." This is the substance of the special charge asked for. *Page 345
5. The court did not err in refusing the second special charge. It was not law.
6. A careful examination of this case leaves no doubt of the guilt of the defendant. The charge of the court was full and fair to the defendant, and if defendant was "handicapped," it was by his own fraudulent acts. We find no error, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.