
    SPARKMAN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 1, 1911.)
    1. Animals (§ 46*) — Conversion — Criminal Responsibility — Evidence—Sufficiency.
    In a prosecution under an information charging defendant with willfully and cruelly beating a horse, and also with taking'up and ■ using the horse without the consent of the owner, evidence held sufficient to justify a conviction for taking up and using the horse without the consent of the owner.
    [Ed. Note. — For other cases, see Animals, Cent. Dig. §§ 141, 142; Dec. Dig. § 46.*]'
    2. Criminal Law (§ 594*) — Continuance-Competency of Absent Witness.
    Where a witness whose absence is the ground of a motion for continuance is under a criminal charge similar to that against the defendant, and not a competent witness, the denial of a continuance is proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. § 594.*]
    3. Criminal Law (§ 453*) — Opinion Evidence-Identity of Persons — Evidence— Admissibility.
    In a prosecution for taking up and using a horse without consent of the owner, evidence that a witness saw two parties in a buggy, and that from their appearance, size, form, etc., it was his impression that one of them was the defendant, held admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1043; Dec. Dig. § 453.*]
    Appeal from Hopkins County Court; F. W. Patterson, Judge.
    Lloyd Sparkman was convicted of taking up and using a horse without the consent of the owner, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State,
   DAVIDSON, P. J.

The information and complaint contain two counts; the first charging appellant with willfully and wantonly, cruelly and unmercifully beating a horse, and the second charging that appellant took up and used the horse without the consent of the owner, Clinton Browning. There was no evidence to support the first; but we are of opinion the evidence, though not strong, is sufficient to justify the verdict of the jury in convicting appellant under the second count.

There was a party, which appellant and others attended. Browning drove to the party in his buggy. One of the officers present testified that lie saw two parties get in tifie buggy and drive away, one of wfiom lie recognized as appellant. The buggy was found at a town some three miles away, an hour or two after it was driven away. The theory of the state was that 'appellant and Sam Crabb were in the buggy and drove it away. Appellant sought a continuance on account ■of the absence of Crabb, for whom he had issued process, and by whom he expected to prove that he did not drive the buggy away. The court signs the bill of exception, with the statement that Crabb was under a similar charge. This being true, and we take it that it is true, under the" circumstances he would not be a competent witness.

Another bill of exception recites that, while the witness Marr was testifying, he was permitted to state that while walking back home from the party at Joe Allen’s, going towards Winnsboro, two parties in a buggy passed him going towards Winnsboro; that he did not know who they were, ’but from his best impression it was appellant and Sam Crabb. Objection was urged to this, unless the witness would identify one of the parties in the buggy as being appellant, which the witness said he could not do; and appellant moved the court to strike out the evidence of the witness Marr, on the ground that it was vague and indefinite. The court, in signing the bill, states that the witness was not permitted to give his opinion as to the identity of the parties in the buggy; but from their appearance, bulk, form, etc., he gave his impression as to who they were. We are of opinion there was no error in this ruling. The testimony was, perhaps, not of much force or cogency; but this would go more to the weight than to the admissibility of the evidence.

Believing there was no reversible error committed upon the trial, it is ordered that the judgment be affirmed.  