
    BURTON v. STATE.
    
    (Court of Criminal Appeals of Texas.
    March 20, 1912.)
    1. Criminal Law (§ 621) —Trial — Announcement for Trial — Withdrawal;
    Where accused, when he announced ready for trial for theft, knew that another was charged in another county with participation in the same theft, so that he could not be a witness for accused under Code Cr. Proc. 1895, art. 771, providing that persons charged as principals or accessories, whether in the same or different indictments, cannot be witnesses for one another, and it was not claimed that accused was surprised by any state’s evidence, accused cannot complain that the court, upon excluding the other person charged as a witness for accused, refused to permit accused to withdraw his announcement of ready for trial, so that he might move to have the other person tried first, pursuant to article 707.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1382, 1387; Dec. Dig. § 621.]
    2. Criminal Law (§ 681) — Admission of Evidence — Preliminary Showing.
    Where there was no evidence, in a prosecution for horse theft, that the horses were taken with the consent of the owner, evidence as to whether the owner had mortgaged the horses, asked for the purpose of showing that he had mortgaged them, and that they were taken by accused with his connivance and consent, to defraud the mortgagee, was not admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1611, 1612; Dec. Dig. § 681.]
    3. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    The Court of Criminal Appeals cannot consider the grounds of a motion based on bills of exception which are not in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2789, 2803-2827, 2927, 292S, 2948, 3204; Dec. Dig. § 1090.]
    4. Criminal Law (§ 784) — Instructions— Circumstantial Evidence.
    Where accused admitted that he and another took horses claimed to have been stolen, ¿nd they were found in accused’s possession, a charge on circumstantial evidence was not required, merely because the intent of the taking was sought to be established by circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal-Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    5. Larceny (§ 71) — Instructions—Sufficiency.
    In a prosecution for horse theft, it appeared that the owner had once authorized accused’s alleged accomplice to trade the horses, and accused testified that when he and the latter took the horses from the owner’s pasture, the accomplice told accused that he owned the horses, and agreed to pay accused $10 to take them to a certain place for him, and that accused took the horses from the owner’s pasture under that belief. The court charged that if the jury believed that accused took the horses under the honest belief that they belonged to the accomplice, or under the belief that the accomplice had authority from the owner to take them, the jury should acquit, and also instructed that if the accomplice had authority from the owner to dispose of the horses and hired accused to take them to a certain place, and accused thought he had the right to do so by reason of such employment, the jury should acquit, and further instructed that accused’s explanation of his possession of recently stolen property is admissible for him, if it was given on the first occasion for any explanation by him (that is, when he was first directly or circumstantially called upon to explain his possession), and in such case, if such explanation be not shown to be false, further evidence of guilt would be required to warrant a conviction. Held, that the instructions sufficiently presented the theory of accused’s defense.
    [Ed. Note. — For other cases, see Larceny, Gent. Dig. §§ 191-194; Dee. Dig. § 71.]
    6. Larceny (§ 57) — Sufficiency of Evidence-Intent.
    Evidence, in a prosecution for horse theft, held to sustain a finding that the horses were taken with the intention of stealing them.
    [Ed. Note. — For other cases, see Larceny, Gent. Dig. §§ 150, 151; Dec. Dig. § 57.]
    7. Larceny (§ 3) — Specific Intent — Necessity.
    To authorize a conviction for theft, a specific intent must have existed in accused’s mind at the very time of the taking.
    [Ed. Note. — For other cases, see Larceny, Gent. Dig. §§ 3-10; Dec. Dig. § 3.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    George Burton was convicted of horse theft, and he appeals.
    Affirmed.
    Brooks & Brooks, of Anson, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       Rehearing denied April 24, 1912.
    
   HARPER, J.

Appellant was indicted, tried, and convicted of theft of a horse, and his punishment assessed at two years in the penitentiary.

When the case was called for trial, the appellant announced ready. A jury was impaneled, and the state introduced its testimony and rested. The appellant then called Henry Gunter as a witness. The state objected to Gunter being permitted to testify, as he was indicted for theft of the same horses in Knox county. The evidence would show that the horses belonged to Will Collins, who resided near Knox City. Gunter and appellant went out to Collins’ house one evening and remained for supper. After supper, they told Mr. Collins they were going to return to Knox City. The next morning Collins missed two of his horses, notified the officers, and appellant was found in possession of the horses in Anson, Jones county. Appellant admits that after leaving Mr. Collins’ house he and Gunter went into the pasture and caught the horses and carried them off, but says Gunter told him the horses belonged to him (Gunter), and he wanted appellant to carry them to Anson for him. Appellant was indicted in Jones county, where he carried the horses, and Gunter was indicted in Knox county, where the horses are alleged to have been stolen. When the court sustained the objection of the state and refused to permit Gunter to testify, appellant asked leave of the court to withdraw his announcement of ready, that he might file a motion under article 707 of the Code of Criminal Procedure, asking that Gunter be first tried. The court declined to permit him to withdraw his announcement, but permitted him to file an affidavit in compliance with said article of the Code, which was by the court overruled. Appellant reserved a bill of exceptions to the action of the court, which was approved by the court with this qualification: “The above and foregoing bill is approved, with the qualification and statement that the defendant had announced ready for trial, a jury impaneled to try the cause, the defendant had pleaded to the indictment, and the state had finished its testimony in chief before said witness was placed on the stand and the objection was made, all before the severance was asked for in this cause.” The application was made too late. The affidavit reads as follows: “In the above numbered and entitled cause, this day comes the defendant, George Burton, and being duly sworn, upon his oath deposeth, says and represents to the court that in a certain ease pending upon the docket of the district court of Knox county, Texas, entitled the State of Texas v. Henry Gunter, the defendant, Henry Gunter, is separately indicted for an offense growing out of the same transaction for which this defendant is indicted in this ease; that the evidence of the said Henry Gunter, defendant in said aforementioned cause, is material for the defense of this af-fiant in this case, and that this affiant verily believes that there is not sufficient evidence against the said Henry Gunter, whose evidence is desired by this defendant, to secure his (the said Henry Gunter’s) conviction in said aforementioned case against' him, the said Henry Gunter.”

It is seen that appellant, at the time he announced ready for trial, was fully aware that Gunter was under an indictment for an offense growing out of the same transaction for which he was being tried; and article 771 of the Code provides that persons charged as principals, accomplices, or accessories, whether in the same or different indictments, cannot be introduced as witnesses for one another, and appellant is presumed to have been aware of that' fact when he announced ready for trial. In the affidavit, nor in the bill of exceptions, it is not claimed that appellant was surprised by any testimony adduced by the state, and under such circumstances we do not think the court erred in not permitting the announcement to be withdrawn. The other case was pending in a different court, over which the district judge of Jones county had no control, and one cannot trifle with the court. He cannot announce ready for trial, proceed with the trial as far as the record shows this case had proceeded, and then, without any allegation showing surprise at the testimony, or any other good reason being given, ask a continuance for testimony that he knew he could not obtain at the time he announced ready for trial. It has been frequently held by this court that an application of this character should not be granted, when it would work a continuance of the case. Evans v. State, 46 Tex. Cr. E. 74, 80 S. W. 374, and cases cited. And where, as in this instance, the affidavit was not filed until after the state had introduced its testimony, the court did not err in overruling it.

While Mr. Collins, the owner of the alleged stolen horses, was on the witness stand, on cross-examination, defendant’s counsel asked him if he had given any one a mortgage on the horses prior to the time they were taken to Jones county. This was objected to by the state and objections sustained. Appellant alleges that the witness would have answered that he had given the First National Bank of Knox City a mortgage on them to secure a note for $150; the contention being that this testimony was admissible, as appellant would contend that the horses were taken with the connivance and consent of Collins, in order to defraud the bank. If there was any testimony in the record upon which to base such contention, there would be some strength in the contention of appellant. However, Mr. Collins says that the horses were taken without his knowledge and consent. The appellant, in his testimony, does not contend that the horses were taken with the knowledge of Mr. Collins; but be says that after be and Gunter bad left Collins’ bouse at nigbt and gone about 100 yards Gunter claimed be was tbe owner of tbe borses, and they went into Collins’ pasture and caugbt them and carried them away. Appellant, Gunter, and Collins were together at Collins’ bouse, and there is no intimation that Collins and Gun-ter bad a conference, separate and apart from appellant, at which such a scheme could have been concocted; and appellant, by bis testimony, would exclude tbe idea that tbe borses were taken under such circumstances.

Bills of exceptions Nos. 1 and 4 are not in tbe record; therefore we cannot consider tbe grounds in the motion based thereon.

Tbe court did not err in failing to charge on circumstantial evidence. Defendant admitted that be and Gunter took tbe horses out of Collins’ pasture, and defendant was found in possession of tbe borses. In a number of cases, it has been held, where tbe taking has been proved by direct testimony, a charge on circumstantial evidence is not required, because the intent with which tbe act was committed is sought to be established by circumstantial evidence. Williams v. State, 58 Tex. Cr. R. 82, 124 S. W. 955; Flagg v. State, 51 Tex. Cr. R. 603, 103 S. W. 855; Dobbs v. State, 51 Tex. Cr. R. 629, 103 S. W. 918; Roberts v. State, 44 Tex. Cr. R. 267, 70 S. W. 423; Alexander v. State, 40 Tex. Cr. R. 407, 49 S. W. 229, 50 S. W. 716; Becker v. State, 50 S. W. 949, and cases there cited.

Appellant complains that tbe court erred in failing to give special charges Nos. 1 and 2 requested, relating to bis defensive evidence. On cross-examination, tbe defendant elicited from. Collins, tbe owner of tbe horses, that at one time he bad authorized Gunter to trade tbe borses. Appellant testified that tbe nigbt he and Gunter took the horses out of Collins’ pasture Gunter told appellant that be (Gunter) owned tbe borses, and agreed to pay him $10 to take tbe borses to Anson for him (Gunter). This was bis contention, that be believed Gunter owned tbe horses, and that in taking them be did so at tbe request of Gunter; and, furthermore, that if Gunter did not own the borses that Collins bad authorized Gunter to take tbe horses and trade them, and, as be was authorized by Gunter to take them, be was guilty of no offense. Tbe court charged tbe jury; • “You are charged that if you believe from the evidence that defendant did take tbe borses charged in tbe indictment to have been stolen, and you believe that Henry Gunter told him (tbe defendant) that tbe borses ■ belonged to him (Henry Gunter), and that he (tbe defendant) took them under tbe honest belief that tbe borses belonged to Henry Gunter, or under the belief that said Gunter bad authority from William Collins to authorize him (tbe defendant) to take them, or you have a reasonable doubt thereof, you will acquit tbe defendant.”' Tbe court also, at tbe request of defendant, gave tbe following special charge; “You are charged that if you believe from tbe evidence in this ca-se that Henry Gunter believed that be bad authority from Will Collins to sell or dispose of the borses alleged to have been stolen by defendant, and that so believing said Henry Gunter hired defendant to bring said borses to An-son, Tex., and defendant thought be bad tbe right to bring them to Anson, Tex., by reason of said employment, as aforesaid, then you will acquit the defendant, and so say by your verdict.” He also charged tbe jury, at tbe request of appellant; “You are charged that, when the possession of recently stolen property is relied on as inculpatory of the defendant, his explanation of such possession is admissible in bis behalf, provided it was given on the first occasion for any explanation by him (that is, when be was first directly or circumstantially called upon to explain bis possession of tbe property), and in such case, if such explanation, if made, be not shown to be false, further evidence of tbe defendant’s guilt will be required to warrant bis conviction.” This sufficiently presented tbe.defensive theory of defendant under the evidence; and there was no error in refusing tbe other two charges requested by appellant.

And we might say here, in support of tbe verdict of the jury, that on redirect examination tbe state proved by Collins that at tbe time be authorized Gunter to trade tbe borses Gunter was staying with Collins; that subsequent to that time Gunter bad left Collins and gone to Ft. Worth and worked there for some time; that appellant and Gunter left Ft. Worth, both finally landing at Knox City, appellant carrying bis saddle with him; that the evening they went to Collins’ bouse nothing was said about tbe borses in the presence of Collins, but after they left Collins’ bouse Gunter and appellant went into Collins’ pasture and took tbe borses, without saying anything about it to Collins; that appellant took tbe borses and slept on the' prairie that night, Gunter going in a different direction; that when appellant arrived at tbe wagon yard in Anson be asked for a closed stable and placed tbe borses therein, and then inquired for horse dealers. Tbe facts and circumstances in evidence would support tbe finding of tbe jury that at tbe time tbe borses were taken it was done with tbe intention of stealing them.

Tbe court did not err in applying tbe law of principals in the charge. Appellant admitted be and another took tbe borses out of Collins’ pasture. And tbe court instructed the jury that “a fraudulent intent is tbe essential ingredient of theft; and, in order to warrant a conviction of a party charged with tbe - crime of theft, such intent must have existed in the mind of the defendant at the very time of taking.”

We have carefully reviewed all the grounds in the motion for a new trial. Some of the criticisms of the charge are without merit, and others are rather hypercritical; but the charge, when taken as a whole, is not subject to the criticism contained in the motion, and especially so when we take into consideration the special charges, given at the request of defendant.

The judgment is affirmed.  