1. Theft — Newly Discovered Evidence — New Trial. — On a trial for horse theft, where one of the grounds for new trial was to obtain the testimony of defendant's father and mother as to certain statements made by defendant to them concerning the horse, and which statements defendant swore he did not remember at the time he went into the trial, held, that the testimony was not newly discovered, and that the new trial was properly refused.
2. Charge of Court not Excepted to — Practice on Appeal. —
3. Same. — On a trial for horse theft, where it appeared that defendant obtained possession of the animal from the father of the owner, and the defense was an agreement with the owner about getting the horse, held, the court properly instructed the jury, in effect, that if accused got possession of the horse in pursuance of and with intent to comply with the agreement with the owner, he would not be guilty, but if he obtained him from the father of the owner with intention to appropriate him at all events whether he complied with his agreement with the owner or not, he would be guilty.
DAVIDSON, JUDGE.
Conviction for theft of a horse. The testimony of the father and mother of appellant is not newly discovered evidence.
That part of the charge of the court complained of was not excepted to at the time. Was it calculated, when the whole charge and evidence are considered, to injure appellant? We understand the charge to mean, that if appellant took the horse by permission of the owner (Marsh Freese) with the intent to comply with the agreement made with him, and by doing that which he had promised to do, then he would not be guilty. But that if appellant, when he obtained possession of the horse from the father of the owner, intended to appropriate the horse to his own use at all events, whether he complied with the agreement made with the owner or not, he would be guilty.
Judgment affirmed.
Affirmed.
Judges all present and concurring.