
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1910.
    On Motion for Rehearing, Feb. 8, 1911.)
    1. Judges (§ 30) — Exchange by Judges of Different Districts.
    Under Const, art. 5, § 11, providing that district judges may exchange or hold court for each other when they deem it expedient, and shall do so when required by law, the judge of another district may Sit at the request of the regular judge, though the latter is not disqualified or at the time holding court for the former or another judge.
    [Ed. Note. — For other cases, see Judges, Cent. Dig. § 143; Dec. Dig. § 30.}
    2. Criminal Law (§ 1151) — Appeal—Review of Discretion — Refusal of Continuance.
    Even if defendant’s application for continuance for absence of witness T. was not insufficient, so as to authorize its refusal irrespective of the question of discretion, where, though it alleged issuance of subpoena for T., it averred request was made to the clerk for subpoenas as shown by defendant’s application for subpoenas, attached to the application for continuance, and the attached application for subpoenas did not contain T.’s name, yet an inspection of the entire record making it doubtful whether he was at the place of the events of which it was claimed he would testify, and making it fairly certain that, in any event, it is unlikely he could have testified to anything material, refusal of the application will not be disturbed as an abuse of discretion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 3045-3049; Dec. Dig. § 1151.]
    3. Criminal Law (§ 939) — New Trial — Newly Discovered Evidence.
    The denial of a motion for new trial in á prosecution for larceny of a steer, based on newly discovered evidence, held proper in view of the nature of the evidence and the' lack of diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dee. Dig. § 939.]
    4. Larceny (§ 60) — Sufficiency of Evidence.
    Evidence on a prosecution for larceny of a steer, the defense being purchase from the owner, held sufficient to sustáin a conviction.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 157; Dee.- Dig. § 60.]
    Appeal from District Court, Archer County; Jo A. P. Dickson, Judge.
    6. R. Johnson was convicted of theft, and appeals.
    Affirmed.
    W. E. Forgy and Taylor, Jones & Humphrey, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rop’r Indexes
    
   RAMSEY, J.

By indictment returned into the district court of Archer county on the 5th day of April of this year appellant was charged with the theft of one head of cattle, the property of J. A. Pollan, which was then and there held by j; R. Pollan and Homer Castle for the said J. A. Pollan. Thereafter, on the 18th day of the same month, appellant was convicted on the charge preferred, and his punishment assessed at confinement in the penitentiary for a period of two years.

The evidence showed that up to about the middle of December appellant had for several years resided in Ellis county, and that he had a small place not far from a large pasture owned and occupied by Pollan and Castle; that on or about the 18th or 19th day of December of last year he shipped 19 head of cattle from the town of Ennis to Dundee, in Archer county; that among this lot of cattle was a small Jersey heifer, which had undoubtedly been the property of J. A Pollan; Pollan claimed he had never sold this property to appellant or any one else. It was appellant’s contention that he had bought the animal a short time before the shipment from Pollan. It was shown by the testimony of both J. R. Pollan and Homer Castle that appellant had stated a short time after the animal was shipped that he had cut out this animal and left her at what is known as the “Gwines place,” in Ellis county. Appellant claimed on the trial to have paid for this animal by means of a check on the Ennis National Bank, dated November 29, 1909, said check being made payable to J. A. Pol-lan or beater, which was produced in evidence and shown to have been paid through the People’s National Bank of Ennis on December 31, 1909. This check bore no indorsement, but the proof was that checks of appellant made'payable to bearer were not ordinarily, if ever, required to be indorsed. Pollan definitively and positively denied ever having sold the animal to appellant, and that he had .received any check for same, or that he had ever had any connection with the cheek. The proof further showed that, soon after being arrested, appellant claimed to have paid for the animal in cash, giving as a reason why he knew he had so paid for her that he had borrowed part of the money from his wife, who was with him at the time. Mrs. Johnson was also introduced, who testified to the purchase of the animal on the day named and the payment therefor by check. She also admitted that she had, when the charge was first brought against her husband, stated that her husband had bought the animal, and that she had let her husband have part of the money to pay for her. Both appellant and his wife, however, state that at the time the charge was first brought, in view of the suddenness of the same and their residence among strangers, they were greatly upset, and did not at once re'eollect the correct method of payment until some time thereafter appellant found this check with other papers which he had thrown into an old stove, when, upon seeing the check, their memories were refreshed, and they remembered the true facts. This check, it should be further stated, was not marked paid until the 31st of December thereafter. Some suspicion was thrown on the check by reason of the fact that it appeared to have been written, or at least some parts of it, with different pencils and probably in a different handwriting. There is no doubt that the check was signed by appellant, and no doubt of its payment at the time when it purports to have been paid, but it was a question of great doubt as to whether it was ever given to Pollan and cashed by him, or whether, in fact, he ever knew anything about it. The evidence further shows that soon after the cattle were shipped appellant returned to Ellis county, and while there the owner of the animal charged appellant in substance with the theft. Appellant at the time said he did not know whether the animal was in Archer county or not, but when he went home he would ascertain and'advise him. This statement, however, was denied by appellant. This seems not to have been satisfactory to Mr. Pollan, and on that day he wrote to the sheriff of Archer county and probably a constable near Dundee about his cow, which soon led to his receiving information from the constable that the animal was in appellant’s possession in Archer county. 'Soon thereafter Mr. Pollan went to Archer county, identified the animal, an affidavit was made against appellant, and in this manner the prosecution arose. There seems to have been an examining trial in which the owner of the animal testified and a son of appellant’s whose testimony will hereafter be noted also testified. We have not undertaken to give a detailed statement of the facts which are quite lengthy and in a state of irreconcilable conflict, but this statement will be sufficient to illustrate the questions discussed.

1. When the case was called for trial, Hon. Jo A. P. Dickson, one of our district judges, appeared and assumed to act and did act as district judge in the trial of the case. Thereupon appellant filed what is called a “plea in limine,” to the effect that Hon. A. H. Carri-gan was the legal and duly elected district, judge of the Thirtieth judicial district, of which Archer county is a part; that while he was absent he was not in any manner disqualified from hearing, trying, and determining said cause, and that of his own volition he had applied to Judge Dickson, district judge of the Fiftieth district, to try the case. It was claimed that Judge Dickson was not qualified to try the case, was not present by reason of any appointment or selection of any kind, and had no authority or right to hear and determine the cause. We think this plea was unavailing. Under the Constitution of this state (article 5, § 11), district judges are authorized to exchange. The Constitution says they may exchange, and that they shall do so when required by law. Whether at the time Judge Carrigan was holding court for Judge Dickson or for some one else is not made apparent. We think it may often happen that a district judge, who-has the care of a family and sometimes cares of business, is authorized, when in his judgment fairly exercised it is necessary for his own health, or to care for the health of his family, or to look after important business matters, to-temporarily absent himself from his post of duty and by exchange, or by calling on the incumbent of an adjoining or adjacent district, provide the means for the continued holding of the court, and that no litigant in such case has a right to retire such exchanging judge from the bench. This ease is wholly unlike that of Oates v. State, 56 Tex. Cr. R. 571, 121 S. W. 370, cited by appellant. In that case we held that the Governor has no-authority to appoint a district judge to hold court, and that, where the authority of such person attempting to act as judge was challenged, the conviction would be set aside.

2. A. more.serious question, however, arises-in respect to the action of the court in overruling appellant’s first application for a continuance. This continuance was sought on account of the absence of John King, -who-was alleged to reside in Clay county, and George Taylor, who was alleged to reside in or near Arlington, in Tan-ant county, or near Ft. Worth; in the Same County'.'' We think there is no merit at all, so far as the application rests on the absent testimony of John King. The testimony showed practically without eontroyersy that no such person as King had lived in the section where the parties resided for many years, and- so conclusively established this fact that it is not a matter of serious dispute. The matter in respect to the absence of George Taylor is somewhat different. The application for continuance states that appellant expected to prove by said witness Taylor that: “On or about the 29th day of November, 1909, while the defendant was in conversation with J. A. Pollan near Price’s cross-roads, in Ellis county, Tex., the witness Geo. Taylor was present and heard the defendant purchase from the prosecuting witness J. A. Pollan one certain brown heifer about V/z years branded with - on the hip, the same being the animal with which he is now charged with theft, and that he saw the defendant Geo. R. Johnson write a cheek and hand it to the said J. A. Pollan in payment for said animal.” In the application for continuance it is averred that in this cause request was made to the clerk for subpoenas as shown by his application attached to his application for continuance, which is marked “Exhibit A.” An inspection of this application for subpoenas for witnesses does not show that the witness Taylor is among them. The subpoena alleged to have been issued for Taylor had been returned, and was not before the court or the subject of inspection. In the absence of any reference to this application for witnesses, it might be assumed that the subpoena had duly issued as stated, but, where in the application referred to as evidence that the subpoena had been issued the name of the witness does not appear, we do not think the court would be concluded by a mere allegation that a subpoena had been issued where the record negatived the fact that same had been applied for. Again, it may be doubtful under the facts whether such a witness lived in that section, or was in that immediate section at the time alleged. Practically all the witnesses for the state say that there had been a man named George Taylor in that country, but that he had moved away some years before the date of the alleged theft. A witness named Stewart speaks of seeing Taylor some time in the fall. 1-Ie is not at all definite when he saw him, but finally thinks it may have been in October. Appellant in his testimony says that Taylor rode by while the transaction or the purchase was going on. He says that Taylor had left the country something like two or three years ago, and that he understood him to say he had moved to Arlington, but would not be positive about that. It is wholly unlikely that Taylor would have testified to the matters, at least in any detail, which it is stated in the application he would have testified to. Touching this matter, appellant says: “I know a fellow named George Taylor. He passed by there at the time I was writing this check. I just spoke, ‘Howdy George,’ and he rode on. We were standing there talking. I was standing with my foot on the wheel when he went by. I was talking to Pollan and trying to write the check. He did not stop with me.” Mrs. Johnson gives the following account of Taylor’s presence at the time the trade was made: “There was a gentleman passed along there while they were having that conversation. George Taylor passed along there. I knew Mr. George Taylor’s face. I do not know where he lived. He had lived down in that community before that time. He had lived close to Tellico. It was about four miles from Price’s cross-roads to Tellico. George Taylor was coming from Ennis and going towards Tellico. He was traveling horseback. He did not stop and talk with us. He merely passed along there. I could not tell you where .Mr. Taylor was at the time Mr. Johnson was writing this check.” A careful reading of this entire record has convinced _ us that it may well be doubted whether Taylor was in that country at the time of the alleged occurrence of these events, and that it is fairly certain that if he was in the country that it is wholly unlikely that his testimony would have gone further than to show his mere presence when appellant and his wife met Pollan. In view of the entire record, we are not prepared to say that there was any abuse of the discretion of the trial court in refusing this application for continuance. Of course, if it were clear that the application were insufficient, the action of the court could be sustained on that ground without the consideration of the question as to how far we would defer to the action of the trial court, and as to whether there had been an abuse of the discretion which the law commits to him. It is in doubtful cases, of course, that his discretion arises, and, before we would be authorized to reverse a judgment of conviction in respect to any matter committed to the discretion of the trial court, it should be fairly clear that this discretion had been abused. In view of all the facts and in view of the showing made by the district attorney as to the testimony given by appellant’s son in the examining trial, it seems to us that under the circumstances it would-be unwarranted on our part to substitute our discretion in a' matter of this sort for that of a trial judge on the ground and more conversant with the facts than we can possibly be.

3. Among other grounds of the motion for a new trial urged by appellant was the newly discovered testimony of E. M. Power and Lon Morris, who reside in Archer county. By these witnesses it was expected to be shown that at the request of the district attorney trying the case they had examined the check mentioned above with the naked eye, and with the same glass that the jury examined said check with while they were deliberating on the verdict in the case, .and after said examination that it was their opinion, based on experience and the examination, that the check was in the same condition when paid as it was when they examined it in so far as the name J. A. Pollan, written thereon, was written on the face of the check before the stamp of the Ennis National Bank was placed on said cheek, marking the same paid. This ground of the motion is met by the answer of the district attorney to the effect that these witnesses were present under subpoena in the courtroom on the trial, and could have been used by appellant if he had so desired; that they were called to the courthouse at the instance of the state’s counsel, and that they were called on to examine the check offered in evidence; that each of them told the district attorney that they could not give an expert opinion upon the writing of said check; that such opinion as they could give would not shed any light upon the question as to whether said cheek had been tampered with or not; that for' this reason they were not put upon the stand, but, on the contrary, with the consent of the defendant and his counsel, given in open court, submitted the check to the jury to be examined by them with a magnifying glass, and they were allowed with the consent of each party to take said check with them to the jury room and examine it at their pleasure.

It was also alleged that the testimony of one Phelps Terry, cashier of a bank at Ennis, was newly discovered, and was important to show the time of the payment of the check in question, the genuineness of appellant’s signature, and the custom of the bank in respect to paying checks payable to bearer, and other facts of similar character. To our minds the date of the payment of this cheek and matters of that sort is not important. That the check was signed by appellant seems not to have been doubted. That it was paid on the 31st day of December, 190&, through the regular channel seems to have been unquestioned. The inquiry was, Was the check given to the owner of the cattle? The testimony X>f all the state’s witnesses strongly negatives this fact In the first place, it was shown that before the alleged purchase by appellant he, had been offered $20 for the animal and had declined to sell it. In the next place, it was shown by this owner as well as his brother and Oastle that appellant in substance denied having taken the animal to Archer county, but, on the contrary, stated that he had cut her out of the herd, and made no claim of ownership or purchase. In, the next place the statement of himself and wife with such circumstantial detail that the purchase had been made and paid for in cash was strikingly at variance with their later claim that she had been paid for with a check. Again, attached to the district attorney’s contest motion is part of the sworn testimony of George R. Johnson, Jr., son of appellant and about 17 years of age, and one of the persons who got up these cattle and helped drive them to Ennis, to the effect, in substance, that the animal in question which was identified by description and brand had got into the pasture in Ellis county, and that he cut her out of the bunch several times while going to Ennis, and; further, that this heifer was the same one brought in the car from Ellis county. He did not know whose heifer she was, but says: “I knew she was not ours.” He further states: “I never notified any one that we had a stray heifer in our pasture.”

4. We cannot accede to the suggestion, made by the learned counsel that the evidence is insufficient to sustain the conviction. On the contrary, it seems to us there is ample evidence, if believed, to sustain same. Of course, it may be that an injustice has been done appellant The jury, however, who have heard the evidence, and the learned trial court who had the witnesses before him, have on full investigation of all the facts found adversely to him. We ought not to interfere unless it was clear that there was some abuse of discretion committed by the trial court.

Finding no error .in the record, it is ordered that the judgment of conviction be, and the same is hereby, in all things affirmed.

McOORD, J., absent.

On Motion for Rehearing.

PRENDERGAST, J.

The appellant’s attorneys have filed a motion for rehearing herein, setting up nothing new, in effect, from what was considered and fully passed upon by this court in the original opinion herein. In addition to an earnest and able oral argument and presentation of the motion for rehearing, he has filed a written brief and argument insisting earnestly that the court reverse and remand this case.

' To his motion for rehearing he has attached some original papers which we cannot consider. They do riot go to the question of the jurisdiction of this court. Neither do they come within the spirit or letter of what was said by this court as to such papers in the case of Spear v. State, 26 Tex. App. 173, 9 S. W. 358.

We have carefully read this whole record, and have, in addition thereto, reread and considered such portions of it as bear upon the action of the court, and the previous opinion herein, on the question of the overruling of appellant’s motion for a first continuance. We have reached the conclusion that we would not be justified in reversing and remanding this cause. We can see no necessity for a further discussion on the subject, as the original opinion herein rendered fully disposes of the whole matter to our satisfaction.

The motion for rehearing is therefore overruled.  