
    PECH v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.)
    1. Criminal Law (§ 772) — Instruction-Venue.
    In a prosecution for the theft of two mules by a bailee, an instruction that defendant was guilty, if he obtained possession of the mules in B. county and did “then and there” fraudulently convert same, sufficiently informed the jury that, to warrant conviction, the conversion must have taken place in B. county.
    . [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1812-1814, 1816, 1817; Dec. Dig. § 772.*]
    2. Criminal Law (§ 936*) — New Trial — Grounds.
    The absence of a witness was not ground for a new trial, where accused, though not tried for four months after his arrest, and though he must have known of the witness’ testimony at the time of the arrest, did not apply to have the witness summoned, or move for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2299-2305; Dee. Dig. § 936.*]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Albert Pech was convicted of the theft of two mules, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otner oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of the theft of two mules," and his punishment assessed at two years’ confinement in the state penitentiary.

There are no bills of exceptions in the record to the admissibility or rejection of any testimony, and no special charges requested. The testimony fully supporting the verdict, the only questions to be reviewed are the complaints of the charge of the court as given.

The court charged the jury that if appellant obtained the possession of the mules in Bell county, and did then and there fraudulently convert same to his own benefit, without the consent of the owner, he would be guilty. As this is a prosecution for theft by bailee, appellant contends that the use of the words “then and there” did not sufficiently inform the jury that, before appellant could have been convicted, he must have conceived the fraudulent intent to convert the mules to his own use in Bell county. The criticism is without merit. No other construction can be given the language used by the court than that it instructs the jury the conversion must have taken place in Bell county.

Defendant’s whole defense on the trial was that he did not convert the mules to his own use, and had not sold them, hut left them with Mr. John Smith, to be kept until the owner should call for them. This issue was fairly and in appropriate language submitted to the jury, and they were told, if they so believed from the evidence, or had a reasonable doubt thereof, they would acquit defendant. The jury found adversely to this contention, and it is not surprising that they did do so when we read the confession of defendant, made shortly after his arrest, together with the other testimony offered in behalf of the state.

The contention in the motion for new trial that, if Mr. Smith had been in attendance on court, he would have supported appellant’s testimony that he had not sold the mules, presents no ground for a new trial. Appellant was arrested on the indictment in March; he was released on bond; the case was not tried until the following July; yet appellant had made no application to have Smith summoned, and made no motion to postpone or continue the case on account of his absence. Under such circumstances, the confession of defendant, and the testimony of Mr. Osburn and others, the court could reasonably conclude that, if Mr. Smith was present, he would not so testify, and, if he did, it would probably not be true. At any rate, no diligence was used to secure the witness, and it could not have been newly discovered evidence; for, if Smith knew these facts, it was as well known to defendant when he was arrested in March as it was in July, after the trial and verdict.

The judgment is affirmed.  