
    COKER v. STATE.
    (No. 6926.)
    (Court of Criminal Appeals of Texas.
    May 24, 1922.)
    I. Criminal law <⅜=>1186(4) — Refusal to give instruction held not reversible error in view of the evidence.
    "Where, in a prosecution for automobile theft, there was direct evidence that defendant was in possession of the car and sold it to another, but only circumstantial evidence that he stole it, but there was no evidence connecting any other person with the theft, the refusal to give an instruction that, if defendant did not steal the car, his subsequent connection with it could not authorize a conviction of theft, held not prejudicial error in view of Vernon’s Ann. Code Or. Rroc. 1916, art. 743.
    2. Criminal law @=3594(1) — Continuance for absent witness held properly denied,
    i An application for a continuance because of the absence of witnesses held properly denied where the application failed to explain the absence of the witnesses, and it appeared that the defendant did not exercise diligence in serving summons on the witnesses or getting their deposition, and the expected testimony was probably not true.
    Appeal from District Court, Denton County; O. R. Pearman, Judge.
    Joe Coker was convicted of automobile theft, and appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for theft. Punishment fixed at confinement in the penitentiary for a period of five years.

A five-passenger open Ford car belonging to Mrs. Hammett was stolen from near her 'home at Denton, Tex., on the night of the 21st of August. The registration number was No. 555212.

The state’s theory, supported by testimony, is this: Appellant, in company with a*'woman whom he described as his wife and going under the name of McKinney, was in possession of the stolen car at Sulphur, Okl., and sold it to the witness Gentry. Appellant represented to Gentry that the car was the property of Mrs.'Murphy and gave to Gentry, her address at Ardmore, naming the room which she occupied in a certain hotel. Gentry talked to Mrs. Murphy and later delivered a check in her favor for $450 to the appellant in payment of the ear, taking from him a hill of sale signed by Coker.

Appellant, in company .with one Jameson, was shown by direct testimony to have been in Denton in a Ford sedan automobile on the day preceding the theft. Two persons coinciding with the description of appellant and Jameson were seen at points in Oklahoma, one driving a Ford sedan, and the other a Ford touring car. After they had made a stop upon the road, a number plate was found where it had been thrown in a pasture. It was identical with the number on the car lost by’Mrs. Hammett, and was introduced and identified upon tbe trial as belonging to her car. A tax seal from an automobile, bent and crumpled, was also found and later identified as coming from the lost car. Certain articles which were in the lost car were found in a grip, which was in the possession of the appellant, who, with his wife, was traveling on the train at the time of their arrest. The room occupied by Mrs. Murphy in the ■ hotel at Ardmore was also occupied by the appellant and his wile. Mrs. Murphy was a sister of appellant’s wife.

Gentry learning that the ear he had bought from the api)ellant had been stolen, sent it to Ardmore by the witness Hendricks, and, after some controversy, Mrs. Murphy surrendered the check which had been given to the appellant for it.

Appellant did not testify, but interposed-the defense of alibi, supported by the testimony of his wife and his mother. From the testimony of the wife, it appears that neither she nor appellant had any interest in the car; that it belonged to her sister, Mrs. Murphy; that she and her husband took a trip in it from Ardmore to Sulphur, and there sold it to Gentry and obtained a check; that Mrs. Murphy got the car from George' Velmer Coker at El Reno; that appellant’s name was Joe Velmer Coker, and the two men were related and bore some resemblance. She said that appellant had left Ardmore on Friday, August 19th, and returned on Monday, August 22d; that he went to his mother at Middlebrook, Okl. His mother, Mrs. Moore, and one of her grandchildren 'verified the statement that he was at her place. She said that appellant had nothing to do with making the bill of sale; that Mrs. Murphy did that; that Mrs. Murphy had a bill of sale from George Velmer Coker, and that was the bill of sale which she turned over to Gentry.

The criminating evidence was circumstantial, and the jury was so instructed. No effort has been made in this opinion to state the evidence in detail, but only such part as is deemed appropriate to illustrate the questions of law necessary in the disposition of the appeal.

Against the charge the point is made that there was error in refusing to instruct the jury that, if the automobile was stolen by some other person than the appellant, his subsequent connection with it would not authorize a conviction for theft. Of course, if the appellant was not the original taker of the car, he was not guilty of theft, though his conduct might have made him guilty of receiving stolen property.

'It is also the law in this state that in a case depending wholly upon circumstantial evidence, if there is testimony to the effect that another committed the offense, an appropriate charge upon that subject should not be refused. Such a charge, however, is not required unless there be evidence bringing some other person in such proximity to the offense as would be of some degree of cogency in tending to furnish the basis for the reasonable hypothesis that the other person committed the offense. Wallace v. State, 46 Tex. Cr. R. 349, 81 S. W. 966; Brown v. State, 74 Tex. Cr. R. 356, 169 S. W. 437; Taylor v. State, 81 Tex. Cr. R. 364, 195 S. W. 1147; Taylor v. State, 87 Tex. Cr. R. 338, 221 S. W. 611. In the instant case the appellant’s theory revealed by his wife’s testimony is that Mrs. Murphy got the car in question from George Velmer Coker at El Reno, Okl., on the 2d day of August, which was some 19 days before it left the possession of the owner named in the indictment in this case. George Velmer Coker was not produced as a witness or accounted for; nor is there any testimony that he was in the state of Texas at or about the time the theft was committed; nor 'was there any testimony that Mrs. Murphy was in Texas at any time prior to the date of the offense. We are constrained to believe that there was no evidence presenting the hypothesis that any other specific person committed the theft. The true - defense advanced by appellant is that he did not commit it and could not have done so for the reason that at the time the car was stolen he was at the home of his mother in Middlebrook, Okl. This hypothesis or theory was submitted to the jury in a definite and affirmative way in a charge of which there is no complaint. So far as we are able to discern, it was the sole affirmative defense. There was direct testimony that the appellant was in Denton on the day before the car was stolen, and that a few days thereafter he was in possession of it in Sulphur, Old., and, acting under an assumed name, sold it to Gentry.

There are also circumstances tending* to connect him with the possession en route between the place at which it was stolen and the place at which it was sold. He and his wife occupied the same room of the hotel with her sister, Mrs. Murphy, in whose behalf appellant claimed that he sold the car and to whom he delivered the check which he received for it. Appellant’s wife, his mother, and another relative testified that he was in Middlebrook,'Okl., at the time the car was stolen.

The real defensive theory was embraced in the charge' on alibi. It in substance covered the phase of the ease under discussion; that is, that the car was not stolen by the appellant, but by some other person. If he did not steal it, there is no evidence pointing out the thief, nor upon which to base a charge undertaking to identify another as having committed the offense. Under these circumstances, we do not understand the law to require the instruction suggested by appellant’s exception. Even if this were doubtful, the true and only affirmative issue being fairly submitted, the omission of the instruction for which appellant contends was not of a character to authorize the reversal of the judgment. Such effect is precluded by the statutory rule stated in Code of Crim. Proe. art. 743, in which the right of this court to reverse because of an omission of the charge is denied unless the omission “was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” See Vernon’s Texas Crim. Stat. vol. 2, p. 501.

Appellant sought a continuance to obtain the testimony of two witnesses by whom he expected to prove that in going from Ard-more to Middlebrook he passed through Purcell, and was there on the 20th of August. In the motion it is averred that the witnesses resided in Dallas. Whether they moved there after or before the date of the offense is not revealed. It was on the 29th of September that he learned that .they were in Dallas. Upon what efforts, if any, that might have previously been made to learn their whereabouts or secure their testimony the motion is silent. On that date he got process, which was returned not executed on a date not named in the motion. On the subpoena there was indorsed, according to the motion, the information that they would return to Dallas on the 20th of October. If the witnesses resided in Oklahoma at the time of the offense, diligence would have required an effort by deposition to secure their testimony. If they resided in Dallas, there was laches in failing to issue subpoena at an earlier date.

The motion for new trial was overruled more than two weeks after the verdict was rendered and no affidavit of the witnesses or either of-them was attached, nor was their absence explained. The court, in approving the bill, indicates that he regards the.testimony as not probably true. In so holding we are not prepared to say that he abused his discretion. We think, however, that the bill shows a want of diligence.

The other bills of exceptions have been examined, but in neither of them is any error disclosed, and in our judgment, a discussion of them in detail would serve no useful purpose.

The judgment is affirmed. 
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