
    GOTCHER v. STATE.
    (Court of Criminal Appeals of Texas.
    May 22, 1912.)
    1. Criminal Law (§ 594) — Continuance-Absence of Witnesses — Diligence.
    Defendant on trial for theft moved for a continuance on the ground of absence of witnesses residing in another county by whom to prove that he was not one of three men whom the owner of the stolen cattle had seen riding in his pasture late on the day when they were stolen, and at a time when he could not recognize them, and also that he was working for one of the absent witnesses in another county and had not left -such county until after the commission of the offense charged. The court, in approving the bill of exceptions to the denial of the continuance, stated that the facts sought to 'be shown were immaterial and insufficient, and that defendant when given an entire day to procure one of the witnesses residing only 16 miles away used no diligence therein. Held, that defendant had shown no ground for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dee. Dig. § 594.]
    2. Criminal Law (§ 1099) — Record—Statement of Facts — Proceedings on Motion-Time of Filing.
    A purported statement of facts, heard on defendant’s motion for a continuance, contained in the record, but which was not filed until after adjournment of the term, cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Criminal Law (§ 1120) — Appeal—Bill of Exceptions — Setting Out Evidenqe.
    A bill of exceptions, on appeal from a conviction for the theft of cattle, showed an objection to' evidence of a deputy sheriff that in ascertaining defendant’s whereabouts he made search and inquiry and sent instructions to-other police officers. Held, that as presented the bill showed no reversible error, since the court could not tell therefrom whether the evidence was admissible or not, or its effect on the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. §. 1120.]
    4. Criminal Law (§ 351) — Evidence—Relevancy — Flight.
    It is always permissible to show flight and search for accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776, 778-785; Dee. Dig. §,■ 351.]
    5. Criminal Law (§ 938) — New Trial— Newly Discovered Evidence.
    An affidavit, on motion for a new trial on. the ground of newly discovered evidence, which, if true, shows that when the offense was committed defendant was at work for the affiant at a certain place and time and could not have been the person who committed the offense, shows no newly discovered evidence, since, iff true, it must have been known as well or better to defendant himself.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2317; Dec. Dig. §. 938.]
    6. Larceny (§ 55) — Evidence — Sufficiency.
    Evidence, in a prosecution for the theft of cattle, held, sufficient to sustain a conviction.
    [Ed. Note. — For other ‘ cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dec. Dig. § 55.]
    7. Criminal Law (§ 1056) — Appeal—Necessity of Exceptions.
    Where no exception is taken to the failure of the trial court to charge, an assignment of error therein after the adjournment of the term cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2668-2670; Dec. Dig. § 1056.]
    Appeal from District Court, Nolan County ; James L. Shepherd, Judge.
    A. W. Gotcher was convicted of theft, and he appeals.
    Affirmed.
    J. F. Eidson, of Sweetwater, 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
    
   PRENDERGAST, J.

On October 19, 1910, appellant was indicted for the theft of one cattle, charged to have been committed on June 18, 1910. Some time after that he was arrested and made bond. On November 13, 1911, he was tried and convicted, and the jury assessed his punishment at two years in the penitentiary.

This trial was the second at that term of court. It seems the first trial was had some days before which resulted in a hung jury. The next day after the first jury failed to agree, the case was again called for trial. The trial was concluded on November 14, 1911. The term of court adjourned on November 25, 1911.

On November 13th, when the cause was called for trial the second time at that term, appellant made a motion for continuance on the ground of the absence of Frank Payne and one Ooker, residents of Bexar county. The application shows he wanted to prove by them that he (appellant) was not one of three men whom Thrasher, the owner of the cattle, said he saw riding in his pasture late on the evening of June 18, 1910, about sundown, or after sundown. Thrasher, state’s witness apd owner of the cattle, on cross-examination — not on direct examination by the state — did swear that he saw three men about a half mile away riding in his pasture about sundown or between sundown and dusk; that he could not and did not recognize them, or pretend to say who either of them was, nor what they were doing. The continuance was also sought for a witness named Bud Anderson, who lived in Nolan county. Appellant expected to prove by Anderson that he was working for him (Anderson), and that he never left Nolan county for some time after the witness Thrasher swore he did, and that he was then corresponding with parties at Douglas, Ariz., relative to accepting a position with them and did afterwards accept and go there and work for them; and that he never left Nolan county until long after the witness Boyd swore he did. The application does not show that any process whatever was ever issued for any of these witnesses. The record shows that in considering the motion for new trial on that ground the court heard evidence. There is with the record a purported' statement of facts heard on that motion, but it was not filed until long after the adjournment of the court. That evidence cannot be considered by us in the case. Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, and cases there cited. The court, in approving the bill denying the motion, did so with this qualification: “The sixth requirement of defendant’s first application for continuance was not complied with; nor were the facts sought to be elicited from the parties named as witnesses material, nor sufficient. The court gave defendant an entire day to procure the witness Anderson; no diligence was made to secure his attendance. Longworth was only 16 miles distant and connected with Sweetwater by rail and by phone and by telegraph, and witness was shown to be at Longworth.” After a careful consideration of the whole matter, we are of the opinion that the application for a continuance was wholly insufficient, and appellant presents no reversible error on that ground.

By another bill of exceptions appellant complains: That while Polk, one of the state’s witnesses, was on the stand, the state asked him this question: “Tell the jury what effort as deputy sheriff you made to ascertain the defendant’s whereabouts immediately after these cattle were claimed and taken from Freeze & Boyd by Grogan.” That appellant objected to this because it was irrelevant, immaterial, and tended to prove no issue in the case, and whatever was done could have been done for the purpose of making evidence against defendant. The court' overruled these objections, and the witness testified: “The first thing I did was to try to find Goteher in town. I went on the streets and searched for him. After supper I inquired among his associates. Then I went to the train that went west, and he did not leave at that time. Then X sent a telegram to the sheriff of Sierra Blanca, describing Goteher, and told him to arrest'him. Then I wired the police at El Paso to meet the train and arrest him there.” This is, in substance, the whole of the bill. It will be seen that from it we cannot tell whether this evidence was admissible or not, nor what effect it had on the case. As presented, it does not show any reversible error. Besides this, substantially the same testimony was given by Mr. Crutcher, the sheriff, without any objection whatever by appellant.

Again, the record shows, from the state’s side, flight by the appellant very soon, if not immediately, after the stolen cattle were identified and shown to have been sold by the appellant to some butchers on the very day the indictment charges they were stolen. It is always permissible to show flight and search for an accused.

The next ground of appellant is claimed newly discovered evidence, and for that purpose he attaches the affidavit of said witness Bud Anderson. Appellant himself does not swear to his motion. He does not show that it is newly discovered evidence, because, if the affidavit of Anderson is true, it shows that on the day the cattle were stolen appellant was at work for him at a certain place and time and could not have been the person who sold the cattle. Of course, if this was a fact, appellant knew it as well or better than Anderson. This ground of his complaint is wholly insufficient to show newly discovered evidence. Gray v. State, 144 S. W. 283.

The evidence by the state showed clearly that the appellant on the morning of June 18, 1910, the date charged in the indictment, sold to Freeze & Boyd the cattle charged to have been stolen with seven others; that they paid him $120 in a check on a bank for the eight head; that he at that time claimed to Freeze & Boyd that his name was A. W. Golston; that he cashed that check at the bank, signing his name A. W. Golston; that on the back of that check he made them a bill of sale to the eight head of cattle, signing his name A. W. Golston. Other checks were produced where he had also signed his own name, and several witnesses testified I positively that whoever signed this check signed all of them. These two witnesses, Freeze and Boyd, identified him positively as the person who sold them on that date the stolen cattle. It was also shown by several officers and bank officials that no such man as A. W. Golston was in that county or had ever lived there. The evidence clearly sustained the verdict.

The only other question raised by appellant is he claims that the court erred in not charging on circumstantial evidence. No such complaint was made in the lower court in any way, and, in fact, no complaint whatever was therein made to the charge of the court, which charge of the court is full and correct. The first time that he assigned this as any error was several weeks after the court adjourned. This court has always held that assignments filed at that time cannot be considered by the court; that we can only consider assignments made to the charge of the court in the lower court by either bills of exceptions or the motion for new trial filed during the term of court.

There being no error, the judgment is affirmed.  