Rios v. State

• Decision Date: 07 December 1898
• Parties: RIOS v. STATE.
• Court: Texas Court of Criminal Appeals

48 S.W. 505

RIOS v. STATE.

Court of Criminal Appeals of Texas.

December 7, 1898.

Appeal from district court, Atascosa county; M. F. Lowe, Judge.

Martiriano Rios was convicted of theft of cattle, and he appeals. Affirmed.

W. O. Read, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of cattle theft, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

When the case was called for trial, appellant made a motion to continue the cause for the testimony of Jesus Garza and Lazaro Salsauda, by whom he expected to prove that they were at the residence of the defendant's father on the evening, and about the time, when the animal in question was charged to have been stolen, and that they stayed at said house the remainder of that evening, and until the following morning, and that defendant did not during the time they were at said house come there, "and that no fresh meat was brought to said house while they were there." This is alleged to be material to appellant's defense. We do not believe the court erred in refusing the continuance. The state did not rely upon the fact that appellant carried the meat to his father's house. This testimony is not material to the issues in regard to the defendant's connection with the theft, and, if it is of any importance at all, it is of the remotest character. The mother of this defendant and co-defendant Miguel Rios testified that her son Miguel Rios did bring fresh beef to the house in question; and she does not mention that these witnesses, or either of them, were at her house at said time, nor is it attempted to be shown that they were at said house.

The second bill of exceptions was reserved to the action of the court permitting Mrs. Hettie Miller to testify in the case. This identical question was discussed in the companion case of Rios v. State (decided at the present term) 47 S. W. 987, and there decided adversely to the appellant's contention.

An exception was reserved to the court's charge because it did not specifically charge the jury that Mrs. Hettie Miller, a witness for the state, was an accomplice. Under the peculiar facts of this case, it would not have been proper, in our judgment, for the court to have so charged. While there are some facts tending to show that she may have been an accomplice, yet the testimony does not render it certain, or place it beyond question, that she was. But, even if it had, it was not then incumbent on the court to charge that she was an accomplice. Usually it is better and safer not to give the charge in this form; and under no circumstances would the court...