
    RAY v. STATE.
    (No. 9603.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1925.)
    1. Criminal law <§=>594(4) — Inability of sick witness to attend court held ground for continuance, even though doctor thought her able to attend.
    Where defendant, accused of cattle theft, applied for continuance because of absence of sick witness, and, although a doctor believed witness able to come to court, she became worse when preparing to go, and was unable to attend, held application for continuance should have been granted.
    2. Criminal law <&wkey;9l7(2) — Overruling application for continuance when material witness could not attend trial held ground for new trial.
    Where, in prosecution for cattle theft, court overruled application for continuance because doctor thought sick witness able to attend and accused presented affidavit that witness became worse when preparing to go and could not attend, and that her testimony was very material, show motion for new trial should have been granted.
    3. Witnesses <§=>361 (I) — Evidence of prosecuting witness’ reputation for truth and veracity properly admitted in prosecution for cattle theft.
    Where prosecuting witness, in prosecution for cattle theft, testified he had never had any trouble with defendant in his life, and defendant testified that relations between them had been strained since an alleged theft by witness, court rightly permitted state to prove that general reputation of prosecuting witness for truth and veracity was good.
    4. Criminal Jaw <§=>829(4) — Refusal of charge relating to proof required to convict for cattle theft held error.
    In prosecution for'cattle theft, court erred in refusing defendant’s charge that jury should acquit, unless state proved beyond reasonable doubt that cow in question was property of prosecuting witness; such issue not being covered in charge that jury should acquit if they believed defendant bought cow at a previous time.
    5. Larceny <&wkey;70(3)— Charge defining what constitutes taking held improper.
    Wh'ere, in prosecution-for cattle theft, cow in question was missed in May, and not located until January, charge that property may be “taken” if thief has been in possession of it even for a moment, and need not take it from presence of owner, held improper as not based on testimony.
    Commissioners’ Decision.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Boss Ray was convicted of cattle theft, and he appeals.
    Reversed and remanded.
    Oxford & Johnson, of Stephenville, for ap-' pellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BAKER, J.

Appellant was convicted in the district court of Erath county of the offense of cattle theft, and his punishment assessed at two years in the penitentiary.

The trial in this case involved the ownership of a certain Jersey cow about five years old. The prosecuting witness, Wood, together with other state witnesses, testified that the cow in question belonged to him, and that he missed, her from his pasture about the 7th of May, 1924, and never saw her any more until he saw her in possession of one Jack Allen about the 1st of January, 1925. The appellant, as a -witness in his own behalf, supported by three or four other witnesses, testified that the cow in question belonged to him, and that he traded for her when she was a calf about a year old, and that she remained in his possession from that time till he sold her to the witness Allen ib 'October,' 1924. This is a sufficient statement of the facts for the basis of this opinion.

Appellant complains of the action of the court in refusing to grant his first application for continuance for the .want of the testimony of J. W. Jackson and Ms sister, Miss Jewell Ray. It is alleged that he expected to prove by said. Jackson that he, appellant, obtained the said cow from the said Jackson in the summer of 1921 in a trade, and by his sister, that he brought said cow in question home about the day that he traded for her from Jackson, and that she was about a year old at that time, and that she was kept on the ranch and milked up till the time she was sold to Allen in the fall of 1924. Subpoenas were issued at the instance of the appellant in due time, and the one for said Jackson was sent to Hidalgo county,' and was returned unserved, but his sister was duly served with subpoena. On the date of the trial she lived in the town of Stephenville, where the court was in session, but on account of serious illness was unable to attend. The record discloses that, when the application for continuance was presented to the court showing the sickness of appellant’s sister, which was supported by the testimony of the family physician, the court ordered Dr. Gordon to examine said witness and report to him if he thought her condition was such that she could come-to the courthouse and testify. After Dr. Gordon made the examination, the record discloses that he found her sick and suffering, but was of the opinion that she could come to the courthouse in a closed automobile, and testify, but on cross-examination by the appellant’s counsel, when asked as to what he thought of her mental and physical condition, he stated, in substance, that she might go all to pieces because “she was as nervous as a wild cat.” The court informed appellant’s counsel that he would, if requested, order an attachment for said witness to be brought into court, which the appellant’s counsel did not request, as shown by the record, but interviewed the said witness, and impressed the importance of her testimony in behalf of her brother, and the record discloses • that said witness attempted to prepare to go to the court and testify, but she became worse, and was unable to attend said trial — all of which is shown by the affidavit of said witness attached to the motion for new trial, in which she not only testified to her condition becoming worse after the examination by Dr. Gordon and his pressing on her affected parts, but that she was confined in her bed for several days after the trial of said case. The testimony in said affidavit fully supported' the allegations in the motion for continuance, and corroborated the testimony given by the appellant in this case as to his ownership of the cow, and how long he had owned her. We think the court was in error in overruling the application for' continuance, and especially in view of the affidavit of the witness attached to the motion for new trial, showing the materiality of the testimony of this witness and her inability to attend the trial. Upon this showing a new trial should have been, granted. For collation of authorities see Branch’s Penal Code, § 335; Bryant v. State, 99 Tex. Cr. R. 600, 271 S. W. 610.

Complaint is made in bill of exception 2 to the action of the court in' permitting the state to prove the general reputation of the prosecuting witness, Wood, for truth and veracity being good, after he had testified on cross-examination, by the appellant that he had never had a bit of trouble with the defendant in his -life.

This witness testified, and denied having taken from the defendant some weeding hoes and a pair of wire stretchers. The defendant testified to witness Wood’s having taken said property, -and from that time on the relations had been of a strained nature between them. The court, in qualifying said bill, states that he admitted the evidence on account of said testimony and the contradictory statements made by the appellant and the prosecuting witness, Wood, and that the appellant was seeking to show that prosecuting witness, Wood, had stolen the articles in question from said appellant, and was seeking to discredit said Wood thereby. We think there was no error shown in this instance and that said ruling of the court came fairly within the rule announced in the following authorities: Graham v. State, 57 Tex. Cr. R. 104, 123 S. W. 691; Dickson v. State, 66 Tex. Cr. R. 270, 146 S. W. 914; Littlejohn v. State, 100 Tex. Cr. R. 459, 273 S. W. 864.

Complaint is made to the action of the court in failing to submit to the jury affirmatively the appellant’s defense in this case and in refusing to submit to the jury the defendant’s special charge No. 1 to the following effect: ’

“The burden is on the state to prove beyond a reasonable doubt that the cow described in the indictment is the property of the prosecutor, John Wood. And, if you have a reasonable doubt as to whether or not she is the property of the state’s witness, John Wood, you will give the defendant benefit of such doubt and acquit him.”

The court in qualifying, this bill states that this issue was covered in special charge No. 4 requested by the defendant. We are unable to agree with this contention, as the record discloses that the special charge No. 4 was to the effect that, if the jury believed the defendant obtained the.cow in question from J. W. Jackson, or had a reasonable doubt thereof, to acquit him. In view of another trial, we suggest to the learned judge, upon the evidence being the same as shown in this record, to give said special charge or cover this phase of the case in his general charge.

Complaint is made in bill of exception 5 to the court’s general charge in defining what constitutes “taking,” and in stating in connection therewith:

“It is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief; though it may not be removed out of the presence of the person deprived of it, nor is it necessary that any definite length of time shall elapse between the taking and the discovery thereof, if but a moment elapse, the offense is complete.”

It is urged that this charge is upon the weight of the testimony and unauthorized by any evidence in the record. The prosecuting witness testified that he missed his cow from his pasture about the 1st of May, and did not locate her until about the 1st of January following. We have discovered no testimony in the record forming a proper basis for the charge' complained of, and we are unable to say that the criticism urged to same was not justified. We therefore suggest that upon another trial, if the facts are the same as shown by the record in this case, the court refrain from giving that portion of said charge criticized and set out above. Bryant v. State, 99 Tex. Cr. R. 600, 271 S. W. 610, supra.

For the errors above mentioned, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the court of Criminal Appeals and approved by the court. 
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