Emmerson v. State

1. Theft of a Horse — Continuance.—On a prosecution for theft of a horse, an application for continuance which alleges that the absent witness would testify that “he saw defendant purchase the alleged stolen horse for a valuable consideration, in Eort “Worth,” is too indefinite to be considered. 2. Same — Evidence Sufficient. — See opinion for facts stated which are held sufficient to sustain a conviction for horse theft. 3. Same — Possession—Temporary Custodian. — When one having the actual control, care, or management of a horse, loans it temporarily to another to ride to church, and it is there stolen, Held, that the indictment properly alleged the “possession ’ ’ in the former, and it was neither necessary to allege or prove the want of consent of the temporary custodian who had ridden it to church.

Appeal from tbe District Court of Denton. Tried below before Hon. D. E. Bakrett. Tbe indictment, wbicb was for borse theft, contained three counts. 1. That tbe borse was tbe property of, and stolen from tbe possession of D. 0. Lay. 2. That the borse was tbe property of C. C. Fowler, and stolen from tbe possession of D. C. Lay. 3. That tbe borse was tbe property of 0. C. Fowler, and stolen from tbe possession of one B. B. Mathis. Tbe third count was quashed on motion of defendant. At tbe trial defendant was convicted, bis punishment being assessed at five years’ imprisonment in tbe penitentiary. Tbe following statement is taken from tbe brief of appellant’s counsel: About tbe 2nd or 3rd day of August, 1893, one D. C. Lay, who lived about two miles north of Joshua, in Johnson County, Texas, and two miles from Julip school bouse, bad in bis possession a certain reel-footed sorrel pony borse, with a Spanish brand on it. Tbe pony belonged to C. C. Fowler, who bad been a laborer for Lay, but bad gone off, leaving tbe pony in Lay’s custody and control. One B. B. Mathis, who was renting land from Lay, on said evening or night borrowed tbe pony to ride to Julip school bouse to a meeting, and when meeting was over be found tbe pony gone from where be bad bitched it, and Mathis returned to Lay’s about 11 o’ clock that night without tbe pony. About four or five days after this Mr. Barnhill, a deputy sheriff of Denton County, brought tbe pony back, tbe defendant having been arrested in tbe city of Denton with tbe pony in bis possession. Tbe school bouse where tbe borse was lost is about twenty miles south of Fort Worth. Denton is about thirty-five miles north of Fort Worth. Joshua is a station on tbe railroad between Cleburne and Fort Worth. Tbe prosecution proved by B. B. Mathis tbe above facts as to tbe loss of tbe borse. The want of consent of D. C. Lay to tbe taking, as well as tbe want of consent of C. C. Fowler, was fully proven, but Mathis was not asked in regard to Ms consent to tbe taking. A witness (Williams) saw tbe defendant in Joshua about 12 or 1 o’clock on tbe day preceding tbe night when tbe horse was taken. Defendant bad lived in that community and has a brother living about seven miles west from Joshua. Tbe defendant was first seen in possession of tbe horse on the morning of Saturday, August 5th, in Denton, which is about thirty - five miles northeast of Fort Worth. He was offering the horse for sale at $30. Some of the witnesses who were- officers, but not known to defendant, asked him where he got the horse, and he said at Denison. When arrested and notified that these parties suspected him of stealing the horse, he told them that he had bought the horse at Fort Worth. Defendant in his testimony for himself admits that he was at Joshua, as testified to by one of the State’s witnesses, but explains what he was doing there. He also explains how he came by the horse, and makes the same statement that he had made to the officers when arrested. Defendant’s statement is, that he bought the horse in Fort Worth on Thursday from a man who called himself Flynn, in the presence of T. Z. Davis, an acquaintance, who was then in Fort Worth. The witness T. Z. Davis, who defendant claims was present when the horse was bought, is the witness for whose testimony defendant sought a continuance. Defendant had used ample diligence to secure the attendance of the witness at the trial.