Godwin v. State

• Citation: 73 S.W. 804
• Parties: GODWIN v. STATE.
• Decision Date: 25 March 1903
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

73 S.W. 804

GODWIN v. STATE.

Court of Criminal Appeals of Texas.

March 25, 1903.

Appeal from District Court, Comanche County; N. R. Lindsey, Judge.

J. E. Godwin was convicted of crime, and appeals. Affirmed.

Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment contains two counts, the first charging theft, and the second theft as bailee under a contract of hiring. The conviction was under the second count.

Application for continuance was properly refused. Conceding the diligence sufficient, which is not a fact, still, viewed from the standpoint of the motion for new trial, the testimony, if it had been adduced, could not have possibly benefited appellant. On the contrary, it would have been of a damaging character. By the witness Mrs. Garrett it was expected to be shown that appellant and Edwards, who was associated with him in hiring the horses and hack at Stamford, in Jones county, informed her that he owned and was in possession of certain patent receipts, and was going to procure a conveyance and get out in the country and engage in the business of selling said receipts and patents; that at the time appellant left her boarding house, where he and Edwards were boarding, they left a portion of their clothing at said house, with the understanding they would return in a few days. The second witness, whose name is not known, is said to reside near Nugent, in Jones county, and is the man to whom Edwards traded the hack obtained from the "Ice-Man" in Stamford, whose name is unknown, and because name is unknown he has been unable to procure process. He expected to prove by this witness that he traded for the hack in which defendant and Edwards left Stamford, and to which the horse defendant here stands charged with stealing was being worked, and that Edwards was the man who traded the horse, and who was exercising control and management of the horse, and at the time appellant did not exercise any such control over the hack or horse; and set up no claim in and to said horse. He also sought a continuance on account of the absence of Edwards, his codefendant, who, from the statement of the judge in his qualification to the bill, is a fugitive from justice, and under indictment in a separate bill for the theft of the same horse. The testimony shows that Edwards and appellant went into the wagon yard of T. M. Spindle, alleged owner, in Stamford. Edwards did the talking, and secured the horse in question from Spindle, to be driven out into the country. Appellant was with him, and together they went off with the horse. They secured another horse about the town, and a hack from a party termed the "Ice-Man," and immediately left, going south, or a little southwest, until they reached the neighborhood of a place called "Nugent." They were traveling together in the hack. At Nugent they traded the hack for a buggy. Thence they pursued their way down the country—the details of the route is given, but it is unnecessary to repeat—until they reached the town of Comanche, where the horse they got from Spindle was sold to a man named Ross. Edwards did most of the talking during the trade. Ross and Holcomb bought the horse and buggy, and defendant during the conversation stated that the title to the property was all right. After the trade was made and the money paid over, $12.50 of it went into appellant's possession. Thence they went to Ft. Worth, where they separated; appellant going to the residence of his father in Cherokee county, and Edwards to parts unknown. If the evidence of the unknown man at Nugent, to whom the hack was traded, had been given before the jury as stated, it would have had a tendency to strengthen the state's case, because appellant had traveled from Stamford to that point with Edwards, and if he had not known before of the guilty purpose of Edwards he then did, and knew that Edwards was trading off property that did not belong to him, and as bailee converted it to his own use. This would have had a strong tendency to show not only a want of honesty, but an actual acting together with Edwards, in the sale of the horse in Comanche to the witness Ross, and this, coupled with the fact, if Spindle had been present and testified to the acts set out in the application for continuance, would have shown from the time of getting the horse in Stamford until its final disposition in Comanche an acting together by these parties. Concede that this testimony had a decided bearing on this case, and that it was probably true, it would have strengthened the state's case, would at no point have militated against it, and therefore could not have been beneficial to appellant. It could not have legitimately tended to bring about a milder punishment or an acquittal. Of course, the application for the presence of Edwards would not be seriously considered. Therefore the court did not err in refusing to grant the continuance.

By bill of exceptions it is shown that defendant offered the testimony of Ross to the effect that he bought the horse appellant is charged with stealing, and the party who sold him the horse executed and delivered to him the following bill of sale, which was written by the party making the sale, to wit: "Comanche, Texas, July 7th, '02. This is to certify that I have this day sold and conveyed unto D. W. Ross one bay mare branded `E' on right shoulder; also one gray mare branded `A B' on left shoulder; also one saddle and one red bottom open buggy and harness. [Signed] J. C. Stacy. Witness: B. B. Holcomb." The state...