
    C. D. Emmerson v. The State.
    
      No. 332.
    
    
      Decided February 10.
    
    1. Theft of a Horse — Continuance.—On a prosecution for theft of a horse, an application for continuance which alleges that the absent witness would testify that “he saw defendant purchase the alleged stolen horse for a valuable consideration, in Eort “Worth,” is too indefinite to be considered.
    2. Same — Evidence Sufficient. — See opinion for facts stated which are held sufficient to sustain a conviction for horse theft.
    3. Same — Possession—Temporary Custodian. — When one having the actual control, care, or management of a horse, loans it temporarily to another to ride to church, and it is there stolen, Held, that the indictment properly alleged the “possession ’ ’ in the former, and it was neither necessary to allege or prove the want of consent of the temporary custodian who had ridden it to church.
    Appeal from tbe District Court of Denton. Tried below before Hon. D. E. Bakrett.
    Tbe indictment, wbicb was for borse theft, contained three counts. 1. That tbe borse was tbe property of, and stolen from tbe possession of D. 0. Lay. 2. That the borse was tbe property of C. C. Fowler, and stolen from tbe possession of D. C. Lay. 3. That tbe borse was tbe property of 0. C. Fowler, and stolen from tbe possession of one B. B. Mathis. Tbe third count was quashed on motion of defendant. At tbe trial defendant was convicted, bis punishment being assessed at five years’ imprisonment in tbe penitentiary.
    Tbe following statement is taken from tbe brief of appellant’s counsel:
    About tbe 2nd or 3rd day of August, 1893, one D. C. Lay, who lived about two miles north of Joshua, in Johnson County, Texas, and two miles from Julip school bouse, bad in bis possession a certain reel-footed sorrel pony borse, with a Spanish brand on it. Tbe pony belonged to C. C. Fowler, who bad been a laborer for Lay, but bad gone off, leaving tbe pony in Lay’s custody and control. One B. B. Mathis, who was renting land from Lay, on said evening or night borrowed tbe pony to ride to Julip school bouse to a meeting, and when meeting was over be found tbe pony gone from where be bad bitched it, and Mathis returned to Lay’s about 11 o’ clock that night without tbe pony. About four or five days after this Mr. Barnhill, a deputy sheriff of Denton County, brought tbe pony back, tbe defendant having been arrested in tbe city of Denton with tbe pony in bis possession. Tbe school bouse where tbe borse was lost is about twenty miles south of Fort Worth. Denton is about thirty-five miles north of Fort Worth. Joshua is a station on tbe railroad between Cleburne and Fort Worth. Tbe prosecution proved by B. B. Mathis tbe above facts as to tbe loss of tbe borse. The want of consent of D. C. Lay to tbe taking, as well as tbe want of consent of C. C. Fowler, was fully proven, but Mathis was not asked in regard to Ms consent to tbe taking. A witness (Williams) saw tbe defendant in Joshua about 12 or 1 o’clock on tbe day preceding tbe night when tbe horse was taken. Defendant bad lived in that community and has a brother living about seven miles west from Joshua. Tbe defendant was first seen in possession of tbe horse on the morning of Saturday, August 5th, in Denton, which is about thirty - five miles northeast of Fort Worth. He was offering the horse for sale at $30. Some of the witnesses who were- officers, but not known to defendant, asked him where he got the horse, and he said at Denison. When arrested and notified that these parties suspected him of stealing the horse, he told them that he had bought the horse at Fort Worth. Defendant in his testimony for himself admits that he was at Joshua, as testified to by one of the State’s witnesses, but explains what he was doing there. He also explains how he came by the horse, and makes the same statement that he had made to the officers when arrested. Defendant’s statement is, that he bought the horse in Fort Worth on Thursday from a man who called himself Flynn, in the presence of T. Z. Davis, an acquaintance, who was then in Fort Worth.
    The witness T. Z. Davis, who defendant claims was present when the horse was bought, is the witness for whose testimony defendant sought a continuance. Defendant had used ample diligence to secure the attendance of the witness at the trial.
    
      F. F. Finer, F. Mounts, and H. M Lobdell, for appellant.
    
      R. L. Henry, Assistant Attorney-General, for the State.
   SIMKIifS, Judge.

Appellant was convicted of horse theft and his punishment assessed at five years. There are but three questions that need be considered:

1. Did the court err in overruling the application for continuance? The absent witness, T. Z. Davis, would testify “he saw defendant purchase the alleged stolen horse, for a valuable consideration, in Fort Worth.” This application is too indefinite to be considered. The facts, not mere conclusions, should be set forth. Rollins’ case, 32 Texas Crim. Rep., 566.

2. The evidence is clearly sufficient to warrant the conviction. Appellant was seen at a railway station in Johnson County, two miles from where the horse was stolen, that night. He had no business of any kind there. On the morning of the third day he was trying to sell the horse in Denton — where he stated to one that he had purchased the horse in the Indian Territory; to another, that he bought him in Den-ison from Davis or Evans. Again he stated he had bought it in Fort Worth from Flynn, and Davis was present. On the trial he took the stand and stated that as soon as he bought the horse he started for the Indian Territory, but bad been riding around bunting for work. He admitted be bad slept out in tbe woods, but claimed to have lost bis money accidentally. Tbe court did not err in overruling tbe motion for a new trial. -

3. Appellant claims that tbe court erred in refusing bis special instruction to tbe effect that if D. C. Lay bad tbe actual care, control, or management of tbe borse, and loaned tbe same to B. B. Matbis to use in tbe discharge of bis business, and it was tben stolen, tbe State must sbow tbe want of consent of Matbis to tbe taking. Tbe facts sbow that tbe stolen borse belonged to one Fowler, wbo left tbe neighborhood, leaving bis borse in charge of D. C. Lay; that on Wednesday night, August 2, 1893, Matbis borrowed tbe borse to ride to church, two miles distant, and return, and tbe horse was stolen while at tbe church. Tbe court charged that under such a state of facts tbe borse would be deemed to be in the' possession of I). C. Lay at tbe time it was stolen. Tbe Code declares that “tbe possession of tbe person unlawfully deprived of property is constituted by tbe exercise of tbe actual control, care, or management of tbe property, whether tbe same be lawful or unlawful.” Penal Code, art. 729. To constitute possession, mere temporary custody is not sufficient; there must be combined with it tbe control, care, and management of tbe property. Willson’s Crim. Stats., sec. 1273. As said in Bailey’s case, 18 Texas Crim. App., 427: ‘Possession’ and ‘custody’ are not convertible terms, under tbe Code; and if property, at tbe time it is taken, be in tbe mere temporary custody of a ward, servant, or other person, tbe indictment need not allege tbe possession to be in such temporary custodian.” It therefore follows that tbe want of consent of such custodian need not be proven. We find no error in the charge given, or in refusing tbe special charge.

Tbe j udgment is affirmed.

Affirmed.

DavidsoN, Judge, absent.  