
    MELTON v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1911.)
    1. Criminal Law (§ 596) — Continuance — Absence of Witnesses — Impeaching Testimony.
    A continuance on the ground of the absence -of a witness who will only impeach another witness is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    2. Criminal Law (§ 598) — Continuance-Diligence.
    Where accused knew for more than five months before his trial that he needed an instrument in the possession of a third person in a sister state, but made no effort to obtain possession thereof, and made no excuse for his failure to do so, a continuance to enable him to procure the instrument was properly denied.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1335-1341; Dee. Dig. § 598.]
    3. Criminal Law (§ 597) — Continuance-Grounds.
    An application for a continuance to procure an instrument which under the evidence would probably not be genuine is properly overruled.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. § 597.]
    4. False Pretenses (§ 38) — Indictment—Issues, Proof, and Variance.
    The variance between an indictment for swindling, based on the sale of an animal, which sets out the cheek delivered in payment of the animal, and the check as described in the indictment, together with an indorsement on the back thereof by accused, does not render the check inadmissible, where the proof showed that prosecutor gave accused the check, and that thereafter accused indorsed it.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. § 38.]
    5. False Pretenses (§ 52) — Evidence—Instructions.
    Where accused charged with swindling by the sale to prosecutor of an animal belonging to a third person sought to show that he bought the animal from the third person and had made a partial payment therefor, a charge that if accused bought the animal from the third person, and that they agreed on the terms of sale, and that the third person accepted a part payment and delivered possession to accused, relying on his promise to subsequently pay the balance, the title passed to accused, and he could not be convicted; was not objectionable because making it necessary that the third person received the part payment before title could pass to accused.
    [Ed. Note. — For other cases, see False Pretenses, Dec. Dig. § 52.]
    6. Criminal Law (§ 1090) — Remarks of Trial Court — Review — Bill of Exceptions.
    In the absence of a bill of exceptions reserved to the remarks of the trial court complained of, the court on appeal cannot presume that the remarks were made.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 1090.] ,
    7. Criminal Law (§§ 763, 764) — Instructions — Weight of Testimony.
    A charge that, if the jury believed from the evidence beyond a' reasonable doubt the allegations of the indictment, they would find accused guilty, was not objectionable as on the weight of the testimony.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1731-1748; Dec. Dig. §§ 763, 764.]
    8. False Pretenses (§ 4) — Swindling—Representation of Ownership.
    Where accused sold animals of a third person to prosecutor representing ownership, and thereby obtained from prosecutor money, a conviction for swindling was authorized.
    [Ed. Note. — For other cases, see False Pretenses, Cent. Dig. § 1; Dec. Dig. § 4.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    M. E. Melton was convicted of swindling, and he appeals.
    Affirmed.
    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
    
   HARPER, J.

Appellant was indicted by the grand jury of Ellis county, charged with swindling, the property alleged to be of the value of more than §50. When tried, he was adjudged guilty, and his punishment assessed at seven years’ confinement in the penitentiary.

The first contention of appellant is that the court erred in overruling his application to continue or postpone the cause on account of the absence of Mrs. E. C. Mitchell, a witness by whom he stated he expected to prove that she heard appellant ask Mr. Mitchell if he would sell the mules, to which question Mr. Mitchell responded he would take §700 for the mules. Mr. Mitchell does not deny this conversation, but states such conversation did take place, only placing the conversation at a different place from that where appellant states it occurred; appellant saying this would have served the purpose of impeaching'the witness Mitchell’. We do not see what could have been accomplished by the witness stating that such conversation took place at a different place, when it is undisputed that the conversation occurred just as stated in the application. Again, the court will not continue a ease on account of the absence of a witness whose testimony would only tend to impeach another witness. Garrett v. State, 37 Tex. Cr. R. 198, 38 S. W. 1017, 39 S. W. 108; Butts v. State, 35 Tex. Cr. R. 364, 33 S. W. 866.

In his second bill of exceptions appellant insists that a postponement should have been granted' to enable him “to procure from among his effects, all of which are in possession of defendant’s brother, George Gray, at Mountain View, Okl., a bill of sale which E. C. Mitchell gave to this defendant at the time he bought the mules from Mitchell,” and which bill of sale would have shown the title to the mules to have been in this defendant at the time he sold the mules to L. O. Mims. The court in approving the bill states: “At the time the defendant in this case was indicted two bills of indictment were returned against him, one for the theft of the mules in question from E. C. Mitchell, and the other the indictment in this case. The case charging him. with theft of the mules was tried on December 1, 1910. At the time of that trial the defendant made an application for a-postponement or a continuance of -that case on account of this same bill of sale, claiming that it was either in the possession of one George Gray, a brother, or in the possession of another brother of his, at another and different place, or that it was in a certain bank, claiming that he was not'sure at that time where it was. After the conviction in that cause, it does not appear from the application here that the defendant ever made any effort to secure such a bill pf sale, and no reason is shown why he did not have the bill of sale, if there was such a one in existence. This cause was set for trial on April 10, 1911. An order was made setting the case for trial on May 2, 1911, and no effort seems to have been made to secure such a bill of sale. The court is also referred to the testimony of ’ E. C. Mitchell, in the statement of facts, with reference to this alleged bill of sale. Erom all the testimony in the case it appears to the court that, if such a bill of sale had been produced, the same would probably not have been a genuine instrument, and therefore the motion for. a new- trial with reference thereto was overruled, even if the application had been treated as a sufficient application for a postponement.”

It is thus seen that no diligence was used to obtain the bill of sale, that from the time appellant must have known he would need such instrument, if he had a bill of sale, more than five months elapsed until the trial of this cause, and in the motion to postpone nor in the bill of excaptions reserved no ground is assigned for his negligence.

After reading the testimony, we agree with the trial judge that, if such instrument, had been produced, it would not have been a genuine instrument. The court did not err in overruling the application.

It appears from the evidence that the charge of swindling is based on the sale of a pair of mules by appellant to L. C. Mims, which he represented he owned, and for which Mims agreed and did pay him $500, the payment being made by a check on the Ennis National Bank for that sum. The check is set out in the indictment, and is thus described: “Ennis, Texas Sept. 6, 1910. No. 249. Ennis National Bank: Pay to M. E. Melton or order $500.00, five hundred dollars L. O. Mims”-—with the following printed„ on the left end of said check: “E. O. Mims. I buy and sell horses and mules the year round.” This check was offered in evidence, to which the appellant objected on the ground that the check had the name “M. E. Melton,” written on the back thereof, which makes a material variance between the check described in the indictment, and the check offered in evidence. The check, when acquired by appellant from Mims, did not have this name indorsed thereon, and the indictment set the check out as obtained by appellant from Mims. There was no such variance as to render the cheek inadmissible, and the proof was positively made by the witness Mims that he gave appellant the check, and went with him to the bank, introduced him to the banker, and saw him obtain the money that he is alleged to have obtained by the means alleged in the indictment.

The court charged .the jury: “If you believe from the evidence that the defendant bought the mules in question from one E. O. Mitchell, and that their minds met on the terms of the trade and the terms of the payment, and that said Mitchell accepted $20-in part payment therefor, and then delivered the possession of said mules to defendant, relying on his promise for the subsequent payment of the balance, then the title to said mules passed to defendant, and, .if you find the facts so to be or if you have a reasonable doubt thereof, you must acquit the defendant.” The appellant objects to this charge, because it makes it-necessary that Mitchell must have received $20 in part payment for-the mules before the title could pass to defendant. If this charge did not affirmatively present the contention of appellant, we fail to understand the case. While it is true-title could pass without the payment of any money, yet the charge was peculiarly applicable to the contention of appellant in this case, and was as, favorable as it .could have possibly been framed under- the evidence;- ■

The ground' in the' motion “feoinplain--ing of remarks alleged to hare been made by tbe court cannot be considered by ns. If any sueb remarks were made by tbe court, no bill of exceptions was reserved, and, in the absence of a bill, we cannot presume that such remarks were made, and, if the remarks were made, “I will not allow you to impeach your own witness,” if appellant was trying to impeach his own witness, the remarks would not be very inappropriate and could not result in injury to appellant.

Paragraph 3 of the court’s charge is not upon the weight to be given to the testimony. Said paragraph merely instructed the jury if “they believed” from the evidence beyond a reasonable doubt the allegations contained in the indictment they would find defendant guilty, and such charge has been often approved by this court.

The evidence shows that appellant sold a pair of mules belonging to Mitchell to Mims for $500, representing he was the owner of the mules, that by such representations he obtained the sum of $500, and amply supports the verdict.

The judgment is affirmed.  