Roberts v. State

• Decision Date: 12 November 1902
• Citation: 70 S.W. 423
• Parties: ROBERTS v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 423

ROBERTS v. STATE.

Court of Criminal Appeals of Texas.

November 12, 1902.

Appeal from district court, Baylor county; Jo. A. P. Dickson, Judge.

Dan Roberts appeals from a conviction of theft. Affirmed.

Glasgow & Kenan, J. A. Stephens, and L. W. Dalton, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of the theft of a horse and mule, and his punishment assessed at confinement in the penitentiary for a term of two years.

Bill of exceptions No. 1 insists that the court erred in overruling the application for continuance. The continuance is based upon the absence of Jim McCarty, alleged to reside in King county, Tex. The record shows that appellant was indicted June 6, 1902, and on June 16th he made his first application for a subpœna for this witness. Appellant was tried on June 20th, some four days after he applied for the subpœna. It is probable that, if he had applied immediately upon indictment for the subpœna, the attendance of said witness could have been secured. Appellant expected to prove by said witness that in January, 1901, one Ise Roberts had a bay H H mare and a black or dark mule in the town of Benjamin, and tried to sell them or trade them to the witness Jim McCarty. In order to show that this testimony was material, the application states that defendant would claim that he bought such a mule and mare from Ise Roberts in January. In the light of the record, we do not think this testimony is probably true, and hence we do not think the court erred in refusing the application for continuance.

Complaint is urged in the second bill to the court's charge on the question of ownership. The first count in the indictment alleged the ownership in Mrs. M. J. Owens; the second in J. L. Height. The court properly instructed the jury that, if they found the ownership in either of these as alleged in either count, they were authorized to find the ownership proved as alleged. This is a correct charge. Key v. State, 37 Tex. Cr. R. 511, 40 S. W. 296.

The third bill complains that the court erred in presenting appellant's defense of bona fide mistake of fact as to the authority to take the animal, under a claim of right, having purchased from Ise Roberts. An inspection of the charge of the court shows that he told the jury, if appellant thought he had a right to take up the animal after the purchase from Roberts, he was entitled to an acquittal; and further told the jury that, if they had a reasonable doubt as to whether he had the right, they should acquit. This charge is correct. Young v. State, 34 Tex. Cr. R. 290, 30 S. W. 238.

The fourth bill complains that the court erred in limiting the evidence of other crimes that appellant had been charged with to the purpose of affecting appellant's credibility as a witness,...