
    WILLCOX v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.)
    1. Criminal Law (§ 598) — Continuance— Absence of Witness — Diligence.
    Accused was indicted March 15, 1911, and, on his ease being called for trial March 12, 1912, he applied for a continuance because of the absence of a witness, alleging that he had been in jail since his arrest 11 months before, and that as soon as he ascertained the residence of the witness he issued process for him on February 15, 1912. Held to show a want of diligence, authorizing á denial of the application.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 1092) — Bill of Exceptions — Filing—Time.
    The court adjourned for the term at which accused was tried on March 16, 1912. An order was granted on the 15th, allowing 20 days from and after April 17, 1912, in which to file a statement of facts and bills of exception. Held, that a bill of exceptions to the refusal of an application for a continuance, filed May 15, 1912, was too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2808, 2829, 2834r-2861, 2919; Dec. Dig. § 1092.]
    3. Criminal Law (§ 884) — 'Verdict—Place of Punishment.
    Where accused was charged with cattle theft as a felony, a verdict finding him guilty as charged in the indictment, and assessing his punishment at- “two years’ imprisonment,” was not defective for failure to fix the place of punishment, since there could be no other place therefor than the penitentiary.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2107, 2526'; Dec. Dig. § 884.]
    4. Larceny (§ 55)— Cattle Theft — Evidence.
    In a prosecution for cattle theft, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. §'55.J
    5. Criminal Law (§ 784 — Witnesses—Circumstantial Evidence.
    Where, in a prosecution for larceny, there is an eyewitness to the taking, and evidence of admissions by the defendant, it is not necessary for the court to charge on circumstantial evidence.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dee. Dig. § 784.]
    Appeal from District Court, Chambers County; L. B. Hightower, Judge.
    Ray Willcox was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of cattle theft; his punishment being assessed at two years’ confinement in the penitentiary.

The indictment was filed the 15th of March, 1911. When the case was called for trial March 12, 1912, appellant filed an application for a continuance, which he alleges to be his first application. He had been under indictment from March 15, 1911, until the 12th of March, 1912. The application for continuance was filed on the 12th of March, 1912. He further alleges he has been in jail in Chambers county since his arrest, about 11 months, and as soon as he ascertained the residence of the witness Dugat he issued process for him, and this process was issued on the 15th of February, 1912. This shows on its face a clear want of diligence. A bill of exception was reserved to the refusal of this application, which was filed on May 15, 1912; the court having adjourned on the 16th of March, 1912. There is no order in the record granting additional time in which to file bills of exception, except the one granted on March 15, 1912. This allowed 20 days from and after April 17, 1912, in which to file statement of facts and bills of exception. This would show that the bill of exceptions was filed long after the time authorized by the order of the court. The bill, therefore, cannot be considered.

Another contention is that the verdict of the jury is insufficient, in that it only punishes appellant by two years’ imprisonment. The verdict reads as follows: “We, the jury, find defendant guilty as charged in the indictment and assess his punishment at two years’ imprisonment.” We are of opinion that the verdict is sufficient. Appellant is charged with cattle theft. The court submitted only that issue to the jury, and the verdict, viewed in the light of the charge and indictment, is sufficient. Comparing the charge with the verdict of the jury, there could have been no other place, except to the penitentiary mentioned. If there had been a misdemeanor offense submitted in connection with it, where imprisonment in the county jail for that length of time could be fixed, there might have been a question presented, but not in the light of this record. Similar questions have been frequently passed on by this court.

Another matter complained of is that the court refused to instruct the jury to acquit, and also failed and refused to instruct the jury in regard to circumstantial evidence. Neither of these positions is well taken. The evidence is rather strong, showing that appellant took the animal knowing it .not to be his, and that he liad no authority to take it, and he was admonished at the time he took it not to do so by one of tbe state’s witnesses, from whom he sought to borrow a rope with which to ,lead the animal away. He set up no claim to the animal at the time in talking to the witness, and we are of opinion that, where there is an eyewitness to the taking and admission by the appellant, it relieves the case of circumstantial evidence.

The judgment is affirmed.  