No. 156. | Tex. Crim. App. | May 3, 1893
1. Defendant's application for a continuance was properly overruled. If the absent witnesses would have testified, as set forth in the application, that the pipe found in the possession of one of the parties sought to be connected with the burglary was not in fact taken from the store burglarized, and that the shoes were taken from the horse mentioned shortly prior to the burglary, it is not probable that these isolated facts would have changed or affected the result reached by the verdict. If its materiality and probable truth be conceded, the testimony is too remote and insignificant to have affected the verdict, under the facts proved. It is well settled, that it is not in every case where the alleged absent testimony is material, and probably true, that the ruling of the trial court, refusing a new trial, will be revised on appeal, when considered with reference to overruling the application for a continuance. "It is only in a case where, from the evidence adduced upon the trial, we would be impressed with the conviction, not merely that the defendant might probably have 'been prejudiced in his rights by such rulings, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted." Browning v. The State, 26 Texas Cr. App., 443; Covey v. The State, 23 Texas Cr. App., 388; Massie v. The State, 30 Texas Cr. App., 64; Pruitt v. The State, 30 Texas Cr. App., 156. The evidence adduced on the trial is not only consistent with defendant's guilt, but it excludes every reasonable theory save that of his guilt, and the guilt of those associated with him in the crime.
2. The court did not err in permitting the prosecution to prove that the horse tracks trailed from the scene of the crime corresponded with those of the horse found at Goldsmith's. The evidence was competent and admissible. Thompson v. The State, 19 Texas Cr. App., 593; Clark. v. The State, 29 Texas Cr. App., 437; McLain v. The State, 30 Texas Cr. App., 482.
It is made ground for a new trial, by amended motion, that the witness McConnell was not sworn before testifying. The agreed statement of the facts shows that he was introduced by, and testified for, the defendant. The amendment alleges that he "testified for the State." No objection was reserved at the trial, and it is too late to raise this question on motion for new trial, even if he testified for the State.
The court refused to instruct the jury, that in order to convict, they must "find from the evidence that defendant at sometime had the goods alleged to have been stolen in his possession," and "in order to warrant the inference of guilt from possession of the stolen property alone, said possession must be a personal one, and must involve a distinct and conscious assertion of claim by the accused, and must be recent and unexplained." The charge, while abstractly correct, was not applicable to the facts. The case is not one of theft, in which the possession of the *116 recently stolen property was relied on to prove guilt. It is certain that the parties entering the house did so for the purpose of theft, because the property was taken. It was not essential to prove that defendant was seen in possession of the property. If the other circumstances connected him with and showed his participancy in the crime as a principal, it was sufficient. While the charge requested announces a correct proposition of law, it was not a necessary one in this case. The circumstances are sufficient to show his participancy in the crime. The judgment is affirmed.
Affirmed.
Judges all present and concurring.