Brooks v. State
Brooks v. State
Opinion of the Court
This conviction is under the act of March 8, 1887, which reads: “Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use, with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as prescribed in the Penal Code for the theft of like property.” (Willson’s Cr. Stat., sec. 1292.)
I. We perceive no error in the action of the court refusing defendant’s application for a continuance. It fails to show proper diligence to obtain the testimony of the absent witness, or sufficient excuse for such failure. Furthermore, the testimony of said witness, as stated in said application, would not be admissible in behalf of defendant, the same being as to defendant’s declarations with respect to his authority to sell the' horse, and not within the rule of testimony explanatory of possession of recently stolen property, nor within the rule of res gestse, but being self serving declarations merely.
II. It was proved by the State that the defendant borrowed the horse in question from Walker, the owner, in the Indian Territory, and rode said horse into Cooke county, Texas, where he sold him as his own property, and without the consent of the owner. These facts, coupled with a fraudulent intent to convert and appropriate said property to his own use, constitute the offense denounced by the statute and charged in the indictment. (Taylor v. The State, 25 Texas Ct. App., 96.) With respect to the fraudulent intent essential to constitute the offense, there is sufficient evidence to warrant the conviction, and the charge of the court fully, clearly and correctly sub
III. . Defendant offered to prove by Walker, the owner of the horse, that, the first time he saw said Walker after having sold said horse, he offered to pay said Walker for said horse, and to prove also by said Walker the conversation then had between them; the bill of exception, however, fails to show the purport of such conversation. This proposed testimony was rejected, and in this ruling we do not think the court erred. Said testimony is not within the rule which renders competent the explanation of the defendant of his possession of recently stolen property. His lawful possession of the horse was not questioned; It was the fraudulent conversion of the property that was in issue, and the acts and declarations of the defendant, not res gestae, but occurring long subsequent -to the conversion, were not competent evidence in his behalf.
We have found no material error for which the conviction should be set aside, and the judgment is affirmed.
Affirmed.
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- 1. Practice.—Continuance is properly refused when, as in this case, the application therefor discloses not only a total want of diligence to procure the absent testimony, but that the testimony, if present, would be inadmissible. % Theet.—The proof shows that the accused borrowed a horse from the owner in the Indian Territory and rode it into Cooke county, Texas, where, without the consent of the owner, and with the fraudulent intent to convert and appropriate the said property to his own use, he sold it. Seld, that sueh facts constitute the crime of theft as defined by the act of March 8, 1887. (Willson’s Crim. Stat., art. 742a.) 8. Same—Practice—Charge of the Court—Intent.—Special charges are properly refused when the general charge correctly embodies all the law of the case. Upon the question of intent the trial court, in this case, sufficiently charged the jury that the fraudulent intent must have existed in the mind of the defendant at the time he sold the horse; and it did not err in refusing to give a similar instruction asked by the defendant. 4. Same—Evidence.—The defense proposed to prove that the defendant, at his first meeting with the owner of the property after the alleged theft, proposed to pay him for the same. It was also proposed to prove the conversation which then ensued between the defendant and the owner, which conversation is not set out in the bill of exceptions. Held, that the said proof was properly excluded as being no part of the res gestse nor relevant to any issue in the ease, and as not coming within the rule which qualifies as evidence a defendant’s explanation of his possession of stolen property.