Abrigo v. State

• Decision Date: 18 October 1890
• Citation: 15 S.W. 408
• Parties: ABRIGO v. STATE.
• Court: Texas Court of Appeals

15 S.W. 408

ABRIGO v. STATE.

Court of Appeals of Texas.

October 18, 1890.

Appeal from district court, Starr county; J. C. RUSSELL, Judge.

Abrigo appeals from a conviction for theft of a mule. Longorio, the owner of the animal, testified that the mule in question, with two others, was stolen from him about the 18th or 19th of November, 1889. The two others came home in February, 1890. The other (the one in question) he recovered in April, 1890, from a man who lived near Collins, in Nueces county. This witness says: "My said mules ranged in this county and the adjoining county of Hidalgo. Their accustomed range is in both counties. The mule was taken from its accustomed range." On cross-examination he reiterated: "My said mules in question range in both counties, Hidalgo and Starr, when on their accustomed range. I sometimes find them in Hidalgo county, and sometimes in Starr county, when I look for them. I do not know whether the mules in question were stolen from Hidalgo or Starr county. All the mules were missing together. * * * In dry times my stock ranged immediately around my ranch in Starr county; but when there is plenty of water on the prairies, they sometimes range even below defendant's home in Hidalgo county." Among other instructions the court charged as follows: "If you believe from the evidence that the animal was taken by defendant within four hundred yards of the county line of Starr county, if it was taken by him, or the same was taken through any part of said Starr county, then said indictment properly alleges the taking to have been in Starr county; and if you believe from a preponderance of evidence that said animal was taken in this county of Starr, as charged, you will so find, and find defendant guilty, if you believe beyond a reasonable doubt, under the facts in this case, that he is guilty as charged in the indictment."

McCampbells & Welch and Wells, Stayton & Kleberg, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

1. Defendant was indicted on the 18th day of June, 1890. He was arrested the next day, (the 19th,) and placed in jail. He immediately sued out attachments for his witnesses, all of whom resided in counties other than that of the prosecution. Said attachments were duly forwarded by mail, but none of them had been returned on the day when the case was called for trial, to-wit, the 23d day of June, 1890. He made an application for a continuance based upon the absence of these witnesses. Their proposed testimony was for the purpose of establishing an alibi for the defendant; that is, it was stated that they would testify that, on the day (November 30, 1889) fixed and alleged in the indictment as the date of the theft of the property, he was at such a distance from the place of the theft as would render it impossible that he could have committed the same. His application for continuance was overruled, and he saved his bill of exception to the ruling, was put upon his trial, had no witnesses, introduced no testimony, and was convicted on the testimony adduced by the state. "The truth" of an application for a continuance, "as well as the merit of the ground set forth therein and its sufficiency, shall be addressed to the sound discretion of the court called to pass upon the same, and shall not be granted as a matter of right." Code Crim. Proc. art. 560. When the court below has refused it in the first instance, and failed to grant a new trial in the second, when the application should again be passed upon, and the materiality and truth of the facts stated are to be tested and considered in the light of the evidence which was produced at the trial, our duty is to determine whether the last ruling was correct. Now in this case the purpose of the absent testimony was to show an alibi as to the date mentioned in the indictment, to-wit, November 30, 1889. The state's evidence shows that the animal in controversy was stolen about the 18th or 20th of November, 1889. and was sold, as the state claims, by the defendant, who executed a bill of sale to the same in an adjoining county, under an assumed name, on the 27th day of November, 1889. It was therefore made to appear that the date alleged in the indictment was not the real or exact date of the transaction complained of. The date of the alleged offense in an indictment is not binding upon the state, and is only material with reference to the bar of limitation, and to show that the offense was committed anterior to its presentment. Cudd v. State, 28 Tex. App. 124, 12 S. W. Rep. 1010; Arcia v. State, 28 Tex. App. 198, 12 S. W. Rep. 599; Code Crim. Proc. art. 420, subd. 6. All then that defendant claimed his absent witnesses would testify might be true, and yet it would be immaterial, because it in no manner tended to disprove the state's case to the effect that he stole the animal on or about the 18th or 20th of November, 1889, and not on the 30th day of November, 1889, as alleged in the indictment. The proposed testimony of the absent witnesses might be true, and yet not in conflict with the state's evidence going to establish his guilt. Fernandez v. State, 4 Tex. App. 419; Browning v. State, 26 Tex. App. 432, 9 S. W. Rep. 770, and authorities cited. No error is made to appear in the ruling of the court on the application for continuance.

2. It is claimed for error that the defendant was not served two days with a copy of the indictment before he was put upon his trial, and we are cited on this proposition to articles 504 and 505 of the Code of Criminal Procedure, and to Woodall v. State, 25 Tex. App. 617, 8 S. W. Rep. 802. It is only where an accused is in custody on a charge of felony, or as soon as he may be arrested, that he is entitled to service of a copy of the indictment. Id. "When the defendant in case of felony is on bail at the time the indictment is presented, it is not necessary to serve him with a copy; but the clerk shall deliver a copy of the same to the defendant or his counsel, when requested, at the earliest possible time." Code Crim. Proc. art. 506. Defendant's bill of exceptions states that he was under an appearance bond at the time the indictment was presented. When defendant objected that he had not been served with a copy, the court ordered a copy of the indictment made out and given to him, which was immediately done. This action of the court was in conformity with article 506, supra. Defendant being upon bail was only entitled to a copy of the indictment when he or his counsel requested it; and, it having been furnished him at the earliest moment after he requested it, he has no ground of complaint. Barrett v. State, 9 Tex. App. 33.

3. It appears from defendant's third bill of exceptions that upon and during the impaneling of the jury to try this cause each of the following six jurors belonging to the regular panel, to-wit, Felipe Garcia, Pedro Morales, Martin Alanis, Fred. Ellert, Christobal Garza, and E. Block, upon their examination and voir dire as to their qualifications as such jurors to try said cause, stated that they, and each of them, were of foreign birth, and had only declared their intentions of becoming citizens of the United States; and that they, nor either of them, had taken out their final papers making themselves such citizens, or done any act to become such citizens under the naturalization laws of the United States save and except said declarations of intention to become such citizens of the United States. Whereupon defendant for cause challenged each and every one of said named jurors, because they, nor either of them,...