95 S.W.2d 127 | Tex. Crim. App. | 1936
Considering appellant's motion for rehearing, we have decided to withdraw our opinion of dismissal originally entered in this case, and to consider it upon its merits.
Appellant was convicted for cattle theft, and given four years in the penitentiary.
The facts appear without dispute that certain calves belonging to the owner named in the indictment were stolen from his possession, and were later sold by this appellant to a Mexican named Trevenio, who testified to the purchase of said animals. Appellant's defense was that he bought the animals in question from a negro named Morse McCain. In his testimony he said that he met McCain at a point east of Lockhart, and went with McCain, Tom Chase and Louis McGee to a point where they found the cattle in question, which were loaded on a truck and taken back to Lockhart, and later in the night carried to San Antonio, and from there to Pearsall where they were sold to Trevenio. In rebuttal the State introduced Morse McCain who testified that he did not sell any cattle to appellant, and that he did not see appellant on the date of the alleged theft. This witness was corroborated by his wife, who testified for the State also. The State further introduced the witness Tom Chase, who denied having anything to do with the selling of any cattle by Morse McCain to appellant, and denied helping load any cattle in appellant's truck. We regard the *435 evidence as amply sufficient to justify the conviction. Appellant has a bill of exceptions complaining of the overruling of a motion for continuance. The diligence does not appear to be sufficient, and the court was entirely justified in concluding appellant not to be entitled to such continuance. If we understand the record, appellant's only purpose in having the witnesses named in the continuance present, would have been for impeachment, which furnishes no good ground for a continuance.
Appellant complains by another bill of exceptions of the refusal of the trial court to let him file a motion for a new trial after the expiration of the time allowed by law for such filing. An issue was made, and we think the testimony heard by the trial court justified his refusal of said motion.
Finding no error in the record, the judgment will be affirmed.
Affirmed.