
    STEPHENS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1913.
    Rehearing Denied March 26, 1913.)
    1. Criminal Daw (§ 594) — Ground for ■ Continuance — Diligence in Pkocueing Attendance of Absent Witnesses.
    Where defendant’s' subpoenas had been returned. a considerable time before the trial, Showing that the witnesses had not been found, and no further process issued or was asked for up to the time of the trial, and it appeared that defendant himself .did not know where such witnesses resided, his motion for a continuance was properly overruled.
    [Ed.' Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. §' 594.]
    2. Criminal Daw (§ Í170) — Appeau—Harmless Error — Exclusion of Evidence.
    Where evidence as to what explanation defendant gave of his possession of the horse alleged to have been stolen was excluded, but the court later-permitted the witness to state fully all that defendant stated at the time, its first exclusion was not error.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    3. Darcent (§ 77) — Horse Theft — Prosecution — Instructions.
    In a prosecution for theft of a horse, where accused explained Ms possession of it by ■ stating that he had traded for it, and got it from a man whose name he did not know or remember, a charge that, if the jury believed that defendant traded for the horse or had a reasonable doubt as to whether or not he traded for it, they should acquit him was sufficient, and it was not necessary to charge specially in regard to explanation of possession of recently stolen property.
    [Ed. Note. — For other cases, see Darceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.]
    4. Criminal Daw (§ 1159) — Conclusiveness of Verdict — Conflicting Evidence.
    Where defendant gives more than one explanation, the conflict in such statements may be considered by the jury in determining whether they are reasonable and probably true; and, under such circumstances, its verdict will not be reversed on appeal.
    [Ed. Note. — For other cases, see Criminal Daw, Cent.Dig. §§ 3074-3083; Dee.Dig. § 1159.]
    5.Indictment and Information (§ 137)— Requisites and Sufficiency — Grammatical Error.
    Grammatical error presents no ground for the quasMng of an indictment,, unless such error renders it uncertain as to the charge intended. The omission of the word “of” presents no error, when, by reading the entire indictment, its intent and meaning is clear.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    Appeal from District Court, Travis County; Chas. A. Wilcox, Judge.
    W. M. Stephens was convicted of theft, and he appeals.
    Affirmed;
    Thelbert Martin, of Austin, for appellant.. C. 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 prosecuted and convicted of the theft of a horse, and his punishment assessed at five years’ confinement in the state penitentiary.

The appellant complains that the court erred in overruling his second application for a continuance. As qualified by the court, the bill presents no error; the court stating; “The subpoenas referred to in the motion had been returned considerable time before the trial; the return showing the witnesses had not been found, and no further process issued nor asked for up to the time of -the trial.” In addition to this, the application itself shows that the residence of the witnesses are not known to appellant; and, if he had not located them by the time this case was called for trial, it is barely possible he would be able to do so by a further postponement of the ease.

It is shown by another bill that, while W. C. Castleberry was testifying, he was asked what explanation, if any, appellant offered of his "possession of the stolen horse at the time of his arrest, which objection was by the court sustained. Dater during the trial, however, the court revised his ruling in this respect, and permitted the witness to state fully all that appellant stated at the time; and, under such circumstances, the bill presents no error.

On the trial, appellant’s contention was that, when found in possession of the stolen horse, he gave, as an explanation of his pos; session, that he had traded for the horse, and got him from a man near Junction City, whose name he did not know or remember. On this issue the court instructed the jury: “If you believe from the evidence that the defendant traded for said horse, or if you have a reasonable doubt as to whether or not he traded for said horse, then you will acquit him.” This character of charge on the submission of this issue has been frequently approved by tbis court; and there was no error in refusing the special charge in regard to explanation of possession of recently stolen property. Hinsley v. State, 132 S. W. 780. The only other questions raised by the motion for new trial are the sufficiency of the indictment and that the testimony does not support the verdict in that defendant gave a reasonable explanation of the stolen horse.

Where defendant gives more than one explanation, the conflict in such statements may be considered by the jury in determining whether they are reasonable and probably true; and, under such circumstances, it has been held that the judgment will not be reversed on appeal. Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Von Emons v. State, 20 S. W. 1106.

Grammatical errors present no grounds for the quashing of an indictment, unless such errors render the indictment uncertain, and one is unable to determine the charge intended. The omission of the word “of,” in the latter part of the indictment, presents no error, when, by reading the entire indictment, the intent and meaning is made perfectly clear. Bishop’s Crim. Pr. vol. 1, §§ 354, 356, 357.

The judgment is affirmed.  