Mayfield v. State

• Citation: 5 S.W. 161
• Court: Texas Court of Appeals
• Decision Date: 22 June 1887
• Parties: MAYFIELD v. STATE.<SMALL><SUP>1</SUP></SMALL>

5 S.W. 161

MAYFIELD v. STATE.¹

Court of Appeals of Texas.

June 22, 1887.

Appeal from district court, San Saba county.

The conviction was for the theft of a mare, and the penalty assessed was a term of seven years in the penitentiary.

The state's proof established the larceny of the mare in question. It traced a bunch of 25 or 30 head of horses to the possession of defendant and one Crarey; the sale, and execution of a bill of sale, to Crarey by defendant of six or seven head of horses not described by the witness who testified to the sale; and the sale by Crarey of 10 head of the horses to Meyer, and the recovery

from Meyer of the mare by its owner. The defendant offered no testimony, but his application for continuance set up that he would prove by the absent witnesses that the defendant could not even write his name, and therefore could not have executed the bill of sale, which he was charged to have executed in an assumed name; that he was merely a hired hand in the employ of Crarey, and that one of the absent witnesses would himself testify that he, and not defendant, sold the horses to Crarey, and executed the bill of sale.

No appearance for appellant. Asst. Atty. Gen. Davidson, for the State.

WILLSON, J.

It was proved on the trial by the state that about the same time that Foudren's mare, the animal named in the indictment, was stolen, other horses were stolen from the same neighborhood, and that these other horses were recovered by the owners at the same time and place that Foudren recovered his mare. This evidence required from the court a charge to the jury explaining and limiting the purpose for which it was admitted, and the court, having omitted to give such charge, committed error, for which the judgment must be reversed. Wheeler v. State, ante, 160.

It was error for the court to instruct the jury as it did in relation to explanations and declarations made by defendant in relation to his possession, etc., of the alleged stolen animal. There was no evidence to warrant such instruction. No such declarations or explanations were in evidence, and a charge should be confined to the facts in evidence. Boddy v. State, 14 Tex. App. 528.

Considering defendant's application for continuance in connection with his motion for new trial, we think the court should have granted a new trial. The evidence of the absent witnesses, as set forth in the application for continuance, would certainly be material to the defendant; and, in view of the...