The indictment charged that the stolen animals were estray cattle, that they were taken from the possession of the owner, and that the owner was to the grand jury unknown. This allegation, it is insisted, is not only not sustained, but is directly and positively contradicted by the evidence. Wm. Finley, a principal witness for the State, testified that on the 27th of February, 1880, he posted notices of his intention to estray the animals if not taken away from his premises within twenty days from date; one of which notices he filed in the clerk’s office as required by law. He says: “I had taken no further steps towards estraying the cattle. It was in a few days after this posting that defendant got the cattle.”

It is here contended by appellant that this posting of the animals with a view of estraying them gave Finley not only a special ownership in them, but also placed the animals actually in his possession;- that the indictment should have alleged the ownership and possession in him and not the unknown owner; and that, such being the state of the proof, the allegations in the indictment were not only unsustained but disproved, and the conviction consequently illegal. Our statute * provides that “when one person owns the property, and another person has the possession, charge or control of the same, the ownership may be alleged to be in either.” Code Crim. Proc. art. 426.

Under the evidence stated above two questions suggest themselves: 1. Was Finley in contemplation of law the owner of the animals ? and 2dly, if not, was his right to possession such as that it was essential that the indictment should charge its violation ? A proper solution of these questions will settle the supposed conflict between the indictment and proofs in the case.

Appellant’s counsel rely upon Jinks v. State, wherein this court say, “from the time Eattan estrayed the property up to the date of sale under the stray laws, he was *258holding the property for the owner, and subject to reclamation by him on proper proof; and from the date of sale he, being the purchaser, became the owner of the property himself. In either event his possession was legal, and the law protected his possession against all persons except the rightful owner, to the time of the stray sale; and having such legal possession it was proper to allege in the indictment that he was the owner of the property.” 5 Texas Ct. App. 68. The same principle was announced in Cox v. State, 43 Texas, 101. But in each of these cases the action taken by the estrayer in compliance with the estray laws had been such and had gone to that extent that the parties in law were entitled to an interest in, as well as possession of, the animals to the extent at least to which the fees paid out by them might be a lien upon the animal and a legitimate claim against the rightful owner.

But in the case before us Finley had simply posted his notices and filed one of them with the clerk as his declaration of intent to estray the animals if no owner applied for them within twenty days. Rev. Stats, art. 4570. This amounted to no mor'e than an initiatory step indicating an intention to estray the animals; in no other manner had he attempted to comply with the law regulating estrays. There had been no oath, appraisement or bond, the essential prerequisites to the estrayal. Rev. Stats, art. 4571. Without a bond such as the law demanded, he could not have used the animal taken up as estray, for any purpose, because the statute expressly prohibits such use [Rev. Stats, art. 4575], and, furthermore, subjects him to a criminal prosecution and punishment for such illegal use. Penal Code, arts. 770 and 771. In our construction of the law applied to the facts Finley was neither the owner of the animals nor in possession of •them. They were estrays whose owner was unknown, as was charged in the indictment.

*259The application for a continuance did not state facts sufficient to excuse the apparent want of diligence to secure the attendance of the witness Berry. . He had been served with subpoena, and was in attendance at the February term. The application was made on the 19th of September, 1881. Affiant states “that, on Tuesday, the 13th day of September, he asked for an attachment for said witness, but was informed that he was now temporarily absent from the State.” Learning him to be absent from the State on the 13th, defendant did not even then do more than “ask for an attachment.” He did not have it issued and placed in the hands of the proper officer in order that it might be shown whether his information to the effect “that he was now temporarily absent from the State” was correct or not. The statement is vague and indefinite in itself. Who informed defendant that Berry had left Ellis county? And when did Berry leave? And what were the circumstances which excused or prevented defendant and his counsel from finding out that so important a witness as this Mr. Berry was absent from the State and would not in all likelihood appear and testify for him on his trial? The session of the court commenced on the 5th day of September, and defendant in the exercise of proper diligence should have been inquiring for his absent witnesses then. .He does not do so until the 13th, when, not seeing Berry about the court, it occurs to him that he will “ask for an attachment;” which he does, when he is informed by the clerk or sheriff or some one else, we are not told whom, that Berry is absent and in the State of Illinois. How is it that other parties can so readily inform him of the whereabouts of his witness and he, the one of all others most deeply interested in his whereabouts, know nothing of him? These are questions which most naturally suggest themselves, — which certainly were capable of explanation,— and which defendant does not attempt to explain. *260His failure to explain them was doubtless the cause inducing the court to overrule his application for continuance, and in view of them we cannot say that the court erred in the ruling.'

With regard to the filing of the charge of the court to the jury, it is provided by statute that “the general charge given by the court, as well as those given and refused at the request of either party, shall be certified by the judge and filed among the papers in the cause; and shall constitute a part of the record of the cause.” Code Crim. Proc. 597. This statute has always been held mandatory to the extent that the filing was essential to the proper authentication of the charge as a record paper in the cause when the record was to be sent up on appeal to this court, for revision; and that, unless it bore the file-mark of the clerk, this court would not consider it as a paper properly belonging to nor constituting part of the record. Richarte v. State, 5 Texas Ct. App. 359, and authorities cited. But it is only where there appears to be a purported charge which shows affirmatively never to have been filed, that the want of file-marks would invalidate the paper. And it is true that this court has time and again recommended as the proper practice that, after reading his charge, the judge should hand it to the .clerk that it may be filed by him before being handed to the jury. Krebs v. State, 3 Texas Ct. App. 348. We. still insist that this is the proper practice and would avoid all such unnecessary and oftentimes fatal objections of this character.

But in the case before us the objection is not that the charge was not filed at all, but that it was filed the day after it was read to the jury. It is not denied that this paper is the charge as actually read by the judge, and it is signed officially by the judge. Ho objection was urged to the time and manner of fifing, in the court below, and it is submitted for the first time on this appeal in this *261court. If the objection were at all tenable under any circumstances, it comes too late as here presented. In so important a record paper as the indictment, our Supreme Court, in Terrell v. State, 41 Texas, 463, held that “if an indictment be found and returned by the grand jury in the District Court, and then filed by the clerk, its validity is not affected by a mistake made by the clerk in the date of his entry in indorsing upon it the date of the filing. Such mistake could not avail to sustain a motion in arrest of judgment.” In this case we find a file-mark upon the charge, and in the absence of any direct showing to the contrary we will presume a lapsus pernios or mistake on the .part of the clerk in his indorsement of the date, rather than an omission of duty on the part of the judge and the clerk.

Another objection to the charge, urged in connection with the above, is that J. T. Lowe- was alone on trial, whereas the charge states the case as being The State of Texas v. J. T. Lowe and Wm. Lowe, and therefore must have been prepared and given in a different case than the one on trial. But we find that the indictment was against J. T. Lowe and Wm. Lowe jointly; the number of the case is the same as the one appearing in the charge, and in the first paragraph of the charge the court announces that “the defendants herein have severed and J. T: Lowe is alone on trial.” In Austin v. State, 42 Texas, 355, where a similar question to the one here suggested was passed upon by the Supreme Court, it was held that “the fact that the charge read to the jury on the trial of a criminal case bore the style and file-mark of another criminal cause raises no presumption that it had been used on the trial of another party, nor, if applicable to the case, would the fact that it had been so used be a ground for new trial.” As we have seen, however, the style of the cause as stated in the charge in this case was explicitly correct, and, when considered in connection with the *262first paragraph above noticed and the other portions of the record, could not mislead, or by any possibility create the slightest doubt or confusion with regard to the cause upon the trial of which it was used.

As to the evidence, the sufficiency of which is questioned, it may be admitted that there is a conflict, but yet, if the jury believed the State’s chief witness,— and it was their peculiar province to pass upon his credibility,— the facts deposed to by him were amply conclusive of defendant’s guilt. We will not interfere with a verdict simply because the evidence is conflicting. The able argument and briefs of counsel are quite persuasive as well as plausible, but we cannot divest ourselves of the conviction impressed upon us by a most careful consideration of the record that it presents a trial eminently fair and impartial, in which no error was committed requiring a reversal. The judgment is therefore affirmed.

Affirmed.