Emerson v. State

• Decision Date: 10 February 1894
• Citation: 25 S.W. 289
• Parties: EMERSON v. STATE.
• Court: Texas Court of Criminal Appeals

25 S.W. 289

EMERSON v. STATE.

Court of Criminal Appeals of Texas.

February 10, 1894.

Appeal from district court, Denton county; D. E. Barrett, Judge.

C. D. Emerson was convicted of theft, and appeals. Affirmed.

F. E. Piner, P. Mounts, and H. E. Lobdell, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of horse theft, and his punishment assessed at five years.

There are but three questions that need be considered.

1. Did the court err in overruling the application for continuance? The absent witness, T. Z. Taylor, would testify that "he saw defendant purchase the alleged stolen horse for a valuable consideration in Ft. Worth." This application is too indefinite to be considered. The facts, not mere conclusions, should be set forth. Rollins Case, (just decided,) 25 S. W. 125.

2. The evidence is clearly sufficient to warrant the conviction. Appellant was seen at a railway station in Johnson county two miles from where the horse was stolen that night. He had no business of any kind there. On the morning of the third day he was trying to sell the horse in Denton, where he stated to one that he had purchased the horse in the Indian Territory and to another that he bought him in Denison from Davis or Evans. Again, he stated he had bought it in Ft. Worth from Flinn, and Davis was present. On trial he took the stand, and stated that as soon as he bought the horse he started for the Indian Territory, but had been riding around hunting for work. He admitted he had slept out in the woods, but claimed to have lost his money accidentally. The court did not err in overruling the motion for a new trial.

3. Appellant claims that the court erred in refusing his special instruction to the effect that if D. C. Lay had the actual care, control, or management of the horse, and loaned the same to B. B. Mathis to use in the discharge of his business, and it was then stolen, the state must show the want of consent of Mathis to the taking. The facts show that the stolen horse belonged to one Fowler, who left the neighborhood, leaving his horse in charge of D. C. Lay; that on Wednesday night, August 2, 1893, Mathis borrowed the horse to ride to church, two miles distant, and return, and the horse was stolen while at the church. The court charged that under such a state of facts the horse would be deemed to be in the possession of D. C. Lay at the time it was stolen. The Code declares that "the possession of the person...