Walker v. State

• Decision Date: 20 May 1893
• Citation: 22 S.W. 685
• Parties: WALKER v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 685

WALKER v. STATE.

Court of Criminal Appeals of Texas.

May 20, 1893.

Appeal from district court, Bell county; W. A. Blackburn, Judge.

W. W. Walker, being convicted of stealing a steer, appeals.

W. W. Hair, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

SIMKINS, J.

Appellant was convicted of the theft of a steer, and his punishment assessed at two years in the penitentiary, from which he appeals. It is only necessary to consider two questions:

1. Appellant asked for a continuance — apparently the first application — to procure the testimony of Bishop, Slawson, and Young, whose testimony seems to be very material. The defense in this case was a taking under claim of right. The sole inculpatory fact was the brands on the steer alleged to have been stolen. It was shown by Aikin, the purchaser, that he had shipped the animal to St. Louis, and that it was branded on the right side A L, connected, and on the left side with a brand called the "T Y" or "Crowfoot Bar" brand. The state proved by witnesses, who did not see the animal sold to Aikin, that this animal was branded A L, connected, while a sucking calf, in the spring of 1886, and, with others in the same brand, was sold to Johnson in 1888, and all rebranded with the crowfoot bar. Some got away, but were all found, except this one, which was never found, unless it was seen by state's witness near Belton in 1889. The animal was sold in the summer of 1890 to Aikin by appellant. In defense, appellant proved that he, with another, saw and claimed the steer in the summer of 1890; that he hired one Caldwell to assist him, being notified by one Young, who lived three miles west of Belton, that the steer was worrying him, and went and roped it; that they drove it along the public road to the city of Belton, and there, finding it heated, they tied it to a tree in the street near the public square from 10 o'clock in the morning to 4 in the afternoon, and then drove it through the streets of the city, and along the public road, to his pasture. Appellant further proved by the state's witness Armstrong, who was called to impeach appellant, that in 1885 and 1886 he (appellant) was an extensive cattle dealer, and purchased a number of cattle around Holland; that one Linderman, in that neighborhood, gave the A L, connected, brand. Appellant further stated on the stand that he purchased these cattle for one Higgins, and at his request put, as a road brand, on them, the crowfoot brand; that, when he went to deliver them, Higgins received enough to repay him for money he had advanced to appellant, but would not pay any more, and appellant had 70 head thrown on his hands; that he drove them to his home, and, to distinguish them from those sold Higgins, placed the bar on them; that the said R. A. Bishop, acting as agent for Higgins in the sale, and Jack Lawson, knew that he handled and owned some of the crowfoot bar brand cattle. We think the continuance ought to have been granted.

But, if there was no error in overruling the ...