Enox v. State, 18698.

• Decision Date: 06 January 1937
• Docket Number: No. 18698.,18698.
• Parties: ENOX v. STATE.
• Court: Texas Court of Criminal Appeals

101 S.W.2d 1022

ENOX v. STATE.

No. 18698.

Court of Criminal Appeals of Texas.

January 6, 1937.

Rehearing Denied February 10, 1937.

Commissioners' Decision.

Appeal from District Court, Red River County; N. L. Dalby, Judge.

Kenneth Enox was convicted of theft, and he appeals.

Affirmed.

R. E. Eubank, of Paris, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of theft of one head of cattle, and his punishment was assessed at confinement in the State Penitentiary for a term of two years.

The testimony adduced by the State, briefly stated, shows that some time in the early part of March, 1936, Mr. E. J. Robinette missed a young bull from the open range; that about the 19th day of March, 1936, appellant sold and delivered to Mr. Jeff Teenor said bull for the sum of $27.50. After Mr. Robinette missed the bull he became quite active in trying to locate it and pursued the search with great diligence. A rumor spread throughout the country that the animal which appellant had sold to Mr. Teenor fitted the description of the animal missed by Mr. Robinette. Mr. Teenor met appellant and inquired of him if the bull which he had purchased from him was "hot." Appellant assured him that it was not. However, a few days later the animal disappeared from Mr. Teenor's pasture and soon thereafter Mr. Robinette found him near his pasture and took possession of him. The animal's earmarks had been changed. A few days prior to the time that Mr. Robinette found his animal the appellant appeared at the home of Mr. Robinette and offered to buy the missing animal and agreed to pay $30 for it, which Mr. Robinette agreed to accept, and a check in said sum was delivered by appellant to Robinette with the request that he was not to cash it unless the bull failed to show up in Robinette's pasture by the following Sunday. The check was not cashed by Robinette. We think that the testimony is sufficient to justify and sustain the conviction.

By bill of exception No. 1 appellant complains of the action of the court in overruling his motion for a continuance based on the absence of his wife, who was ill and unable to attend court. The application discloses that appellant expected to prove and would have proved by the absent witness, if present in court, that she wrote the check in the sum of $30 and signed the name of appellant's mother to same; that appellant did not at any time come into possession of the alleged stolen bull; that appellant had no knowledge of any agreement to pay for a stolen bull with said check. The bill of exception is qualified by the court and in his qualification states that the physician's certificate of the condition of the absent witness is unsatisfactory and insufficient to show that the witness was in such condition that she could not safely attend court; that a few days after the trial she appeared in the court, but showed no signs of being in the condition as claimed by defendant. Appellant brought this matter forward in his motion for a new trial, but did not attach the affidavit of the witness to the motion, nor did he swear to his motion. The granting of a motion for a continuance rests largely in the sound discretion of the trial court, and unless it is made to appear that he abused his discretion in refusing the continuance, no reversible error is shown. See Hughes v. State, 95 Tex.Cr.R. 65, 252 S.W. 774; McCuen v. State, 75 Tex.Cr.R. 108, 170 S.W. 738; Bronson v. State, 59 Tex.Cr.R. 17, 127 S.W. 175.

Bills of exception Nos. 2, 3, 4, and 5 have been carefully considered by us and found to be without merit.

By bill of exception No. 6 appellant complains of the action of the court in declining to...