
    TALMADGE v. STATE.
    (No. 6584.)
    (Court of Criminal Appeals of Texas.
    Feb. 1, 1922.
    Rehearing Denied March 1, 1922.)
    1. Criminallaw <@=>l 169(9)— Conclusion of witness held not harmful.
    Testimony of witness to the conclusion that he was in “possession” of property charged to have been stolen was harmless, where the facts showing ownership and possession were amply proved.
    2. Criminal law <@=>l 169(3) — Admission of evidence held not reversible error.
    In prosecution for theft of oil well casing, it was not reversible error to admit testimony that in negotiating with owners of trucks that hauled off! the pipe accused described the property as “hot stuff,” where accused in his testimony declared that stolen'pipe was at times referred to as “hot pipe” and sometimes as “wet pipe.”
    3. Witnesses <@=>255( 10) — 'Testimony given after refreshing memory of witness by statement before grand jury held proper.
    Where state’s witness failed to recall a conversation with accused, and district attorney, claiming surprise, showed the witness his statement made before the grand jury, which had been reduced to writing and signed by the witness, whereupon the witness testified to the conversation with the accused, there was no error; such statement not being read to the jury.
    4. Criminal law <§=>598(6) — Diligence in obtaining evidence insufficient to require continuance.
    Where no process was served on absent witness until three days before the trial, held that diligence was insufficient to render error a refusal of a continuance, though the application averred that the witness had promised to be present and was temporarily in another county.
    5. Criminal law <@=>742(2) — Truck drivers hauling off stolen property not accomplices as matter of'law.
    Persons employed to haul off oil well easing, which employer was charged with stealing, held not accomplices as a matter of law.
    6. Criminal law <5=3508(9) — Testimony of witnesses not accomplices as matter of law will support verdict.
    In the absence of a request to have jury determine status of witnesses who were not accomplices as a matter of law, their testimony may support a verdict of guilty.
    On Motion for Rehearing.
    7. Criminal law <®=>917(2)— Materiality of absent testimony to be considered motion for new trial for refusal of continuance.
    On motion for new trial because of refusal to grant a continuance *on account of the absence of a witness, the materiality of the absent testimony was a matter to be considered by the court.
    8. Criminal law <@=>595(2), 917(2) — Absent testimony held not material.
    In prosecution for theft of oil well casing, where defendant claimed that he had purchased the casing from a third person, absent testimony that such third person was seen in the locality after the alleged theft was not material, and court did not err in denying a continuance and a motion for new trial.
    9. Criminal law <@=>507(4), 780(2) — Sheriff assisting in theft of pipe held not accomplice, and instruction thereon properly refused.
    Where sheriff was informed, hy a truckman engaged by accused to assist in hauling off oil well casing, that such pipe was to be taken, and disguised himself as a laborer for the purpose of detecting the offenders, and went with the party and helped to load some of the pipe on a truck, he was not an accomplice, and an instruction on the law of accomplices was properly refused.
    Appeal from District Gourt, Stephens County; O. O. Hamlin, Judge.
    H. D. Talmadge was convicted of theft and appeals.
    Affirmed.
    McLean, Scott & McLean, of Fort Worth, and Benson & Dean and John F. Evans, Jr., all of Breckenridge, for appellant.
    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 two years. The property taken was oil well casing. It was situated near the village of Caddo at a well known as Cary No. 2, and Osterman was the owner. Appellant engaged the owners of a number of trucks to haul the property. One of the persons so engaged informed the sheriff of the enterprise, and he disguised himself as a laborer and accompanied the party upon one of the trucks, and after the possession of the property was obtained he arrested the appellant.

Appellant testified and claimed that his design was not to steal the pipe, but that his connection with it was by virtue of an agreement with a man named Watson, who claimed to .have purchased the pipe from a man named Spleen; that Watson had requested him to hire the trucks and have the property removed, and agreed to pay him the sum of $1,000 for the transportation, this being $300 in excess of the price which the owners of the trucks charged for transporting the pipe,

Osterman testified, and the facts showed, that the property was under his care, control, and management. The fact that he also testified to the conclusion that he was in possession of it was not important noi harmful. The facts showing ownership and possession were amply proved without regard to his statement that he was in possession. The fact that the use of the word “possession” in connection with his other testimony is but a shorthand rendition of the facts. At all events, the possession was not a controverted issue. The state’s testimony, as stated above, aside from this conclusion, was ample to establish it.

In negotiating with the owner of the trucks, one of the witnesses testified that appellant described the property as “hot stuff.’’ In his testimony appellant declared that stolen pipe was at times referred to as “hoi pipe” and sometimes as “wet pipe.” We think the complaint of the admission of the testimony that in making arrangements to' haul it appellant described it as “hot stuff” is not a matter calling for a reversal of the cause.

The state’s witness Lockhart failed to recall a conversation with the appellant. A bill of exceptions complains of the conduct of the state touching the statement of Lockhart before the grand jury. The bill is qualified thus:

“The district attorney claimed surprise a1 the testimony of the witness Joe D. Lockhart failing to remember a conversation had with the defendant prior to the theft, and asked the witness if he had not testified before the grand jury, and, the witness answering in the affirmative, the district attorney then showed him His statement made before the grand jury, which had been reduced to writing and signed by the witness, and the witness, after reading the same, testified to the conversation with the defendant which the district attorney had undertaken to prove by him in the first instance. The grand jury statement was not read to the jury, and was not offered nor admitted in evidence.”

Thus explained., the bill shows no error. The writing was available to refresh the memory of the witness.

An application for a continuance was made on account of the witness Stout, by whom the appellant expected to prove his contract with Watson to haul the pipe, and that upon learning of appellant’s arrest Watson had fled the country. Stout was a resident of the county, and the trial took place about a month after the indictment was returned. No process was serv.ed on Stout, and none issued for him until three days before the trial. In the application, there was an averment that a few days before the trial began he (Stout) had promised to be present, and that he was temporarily in Comanche county, though his exact -whereabouts was unknown. The motion for new trial was ■overruled something over a week after the trial. Neither in the application nor in the motion for new trial was there any sufficient reason given for the failure to cause the subpoena to be issued at an earlier date, or to attach his affidavit to the motion for new trial. We think the diligence is insufficient. Aside from that fact, the record does not, in our judgment, indicate that the trial court abused its discretion in overruling the application.

Appellant’s connection with the taking of the property was conceded, and there were many circumstances revealed by the evidence pointing to his knowledge that the taking was illegal. The expedition was undertaken at night. The trucks were separated and reassembled near the stolen property at a certain point designated by the appellant. There was evidence, that as they approached, upon appellant’s suggestion, the noise was suppressed and the lights were extinguished.

The testimony with reference to the entity of. Watson described by the appellant was not of so impressive a character as to indicate that the trial judge was wrong in concluding that the absent testimony of Stout would have probably produced a different result. The failure to produce Spleen, from whom appellant claims that Watson bought the property, is unexplained.

Appellant advances the position that the witnesses against him were accomplices. We think they were not so as a matter of law. Wright v. State, 7 Tex. App. 574, 32 Am. Hep. 599; Allison v. State, 14 Tex. App. 122; Smith v. State, 89 Tex. Cr. R. 145, 229 S. W. 523; and cases listed. There was no request made to have the jury determine their status. In the absence of such request, the witnesses not being accomplices as a matter of law, their testimony will support the verdict. McElroy v. State, 53 Tex. Cr. R. 59, 111 S. W. 948; Huggins v. State, 85 Tex. Cr. R. 205, 210 S. W. 804.

The judgment is affirmed.

On Motion for, Rehearing.

LATTIMORE, J.

We have considered appellant’s contentions in his motion for rehearing. The indictment against him was returned April 28, 1921. I-Iis case was called for trial May 26th thereafter. No sort of diligence would be shown to obtain a witness for whom no process was issued until May 23d. That said witness on that day had promised appellant that he would be in attendance at the trial would not avail him. Appellant had already been guilty of negligence in failing to have process issued. That he did not depend on the' promise of said witness is shown by the fact that on the day on which he claims the witness promised him to be at the trial a subpoena was asked for said witness.

The materiality of the absent testimony was a matter to be considered by the court below in passing on the motion for new trial. Said testimony as stated in the- application for continuance was that the absent witness would swear that be knew one Watson, and saw him in Oisco on April 20, 1921, and knew that Watson was dealing in pipe. The record discloses that appellant introduced several other witnesses on the trial, who testified that they knew a man named Watson who dealt in pipe. We find nothing in the statement of facts indicating any controversy of this fact. The theft charged against appellant took place on April 16, 1921, from a point in Stephens county where the alleged stolen pipe was located. We are unable to perceive the materiality of proving that the absent witness saw Watson in Oisco, in Eastland county, four days after the alleged theft.

It is in evidence that a truckman engaged by appellant to assist in hauling the' alleged stolen pipe gave some information to the sheriff concerning the enterprise. That the sheriff, disguised as a laborer and for the purpose of detecting the offenders, went with the party and helped to load some of the alleged stolen pipe on a truck would not seem to make of him an accomplice under any of the authorities. His sole purpose was to be in a position to make out a case against the guilty parties, who were arrested by him in the act of committing the theft. No error was committed by the court in refusing to charge on the law of accomplice.

Believing that the case was correctly decided, the motion for rehearing will be overruled. 
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