Opinion
No. 5086.
Decided June 26, 1918.
1. — Theft — Sufficiency of the Evidence.
Where, upon trial of theft over the value of fifty dollars, the evidence sustained the conviction, there was no reversible error.
2. — Same — Continuance — Motion for New Trial.
Where the application for continuance showed a want of diligence and the absent testimony was not material, and the motion for a new trial was without proper affidavit, there was no reversible error.
3. — Same — Declarations of Defendant.
Where the records showed that the declarations of defendant were made before he was arrested, they were admissible in evidence.
Appeal from the District Court of Tarrant. Tried below before the Hon. Geo. E. Hosey.
Appeal from a conviction of theft; penalty, two years imprisonment in the penitentiary.
The opinion states the case.
Homer L. Baughman, for appellant.
E.B. Hendricks, Assistant Attorney General, for the State. — On question of declarations of defendant: McMeans v. State, 55 Tex. Crim. 69.
Appellant was convicted of the theft of property of the value of more than $50, and assessed the lowest punishment.
The testimony was clearly sufficient to establish his guilt. We see no necessity for reciting the facts. There are but two questions raised. One is, he complains that the court erroneously refused his application for a continuance. He made it on account of the absence of two witnesses. One of these later reached the court and was introduced as a witness for, and testified in behalf of, the State, materially different from what appellant alleged he would. Appellant was indicted February 5th, and soon thereafter arrested. He had no process issued for the absent witness until February 15th, which was for the witness who was alleged to reside in Austin, Travis County. The process was returned February 21st, the return of the officer showing that the witness could not be found in Travis County after diligent search and inquiry No other process was issued. He was tried the next day. The testimony of the absent witness, even if there was such a witness, and she would have testified as he alleged, was not sufficiently material to require a reversal. Besides to his motion for new trial which was not acted upon until a week after his conviction, he attached no affidavit by her that she would have testified any such things he alleged she would.
In his other bill he complains of the court admitting in evidence his statement to the officer who arrested him, his mere objection being that he made the statement after he had been arrested. The officer swore that he had the conversation with him, in which he made the statement objected to, before he arrested him, and that at the time he was not under arrest, and he had not even stated to him that he intended to arrest him. This bill shows no error. No other question is raised for discussion.
The judgment is affirmed.
Affirmed.