Aрpellant was convicted of the theft of cattle, аnd his punishment assessed at five years, from which he appeals. There are but two questions raised:
1. Appellant complains of the error of the court in overruling his motion for а continuance. Appellant was indicted January 12, 1892. The application was filed January 10, 1893, and based upon the wаnt of the testimony of two witnesses. The application stаted that one of the witnesses was a resident citizen of the county, but affiant learned this morning, for the first time, his residence was unknown. The other was in the county in January, 1892, when affiant asked for a subpoena, which he thought had been served, but learned January 3, 1893, that it had not been. There is no diligence whatever shown.
2. Appellant insists, that the evidence does not supрort a conviction for theft, because the animal wаs not taken for the purpose of defrauding the alleged owner, but to conceal a previous theft. It seems, that in the winter of 1890, Frank Logan lost a yearling, which he found on the 1st day of April, 1891, branded and marked, and in the possession of one ICokernot, who penned it with others in the stock yards in Gonzales, for shipment. ICokernot bought it from one Dan Jacks, who got it frоm appellant. The night succeeding the day on which it was discovered by the owner, appellant, being notified of thе discovery, went into the stock pen and shot the animal, аnd threw it into a well in the stock pen, and the next morning the animаl could not be found by the owner, nor until the next winter, when the cаrcass was discovered in the well, and investigation of the mаtter began.
Now, while it clearly appears that the аnimal was fraudulently taken without the consent of ICokernot, who had it in possession and bought it, with intent to deprive him of the value thereof, yet it is also apparent that the taking was fоr the purpose of destroying it, and thus prevent its identification and proof of the first theft. The question arises whether such an act constitutes theft, the animal having been originally stolen
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by appellant and sold, and the second taking being to conceal the first theft. It is not every taking “ without the consent оf the owner, with intent to deprive the owner of the value thereof,” which constitutes theft. Such acts may be nothing more -thаn trespass or malicious mischief. To constitute theft, therе must be not only the fraudulent taking, but also the intent to apprоpriate the property to the taker’s use or benefit. There can be no question that the act done was fоr appellant’s benefit, though it was taken with intention to destrоy it, not only to prevent his -detection, but the repayment оf its value to Kokernot. In Dignowitty’s case,
We think there was no error in the judgment, and it is affirmed.
Affirmed.
Judges all present and concurring.