ROBINSON v. THE STATE

1. Continuance.

An application for continuance must make manifest the materiality of the proposed absent testimony.

On a trial for theft from the person, where the indictment charged, that the offense was committed by taking the property so suddenly as not to allow time to make resistance before it was carried away; and the court charged the jury both as to the offense as alleged in the indictment, and also as to the offense when committed without the knowledge of the prosecutor, but, said last portion of the charge was not excepted to. Held: The evidence being amply sufficient to support, the allegation in the indictment, the error in the charge was not of a character calculated to prejudice the rights of defendant, and would not constitute ground for reversal — the charge not having been excepted to.

On a trial for theft from the person, the definition of "Principals," in the charge, if incorrect, could not have injured the defendant where there was no question that defendant was present and aided and abetted in the theft with guilty knowledge thereof; and where the court, in applying the law to the facts, instructed the jury, that, if they "found the offense was committed by one B., but, that defendant was present, and knowing the unlawful intent of the said B., aided him by acts or encouraged him by words, in the commission of said offense, if any, to find defendant guilty," etc.

DAVIDSON, JUDGE.

Appellant was convicted of theft from the person, and given five years in the penitentiary, and prosecutes this appeal. Appellant made a motion for a continuance, which was overruled by the court, and he excepted. Appellant sued out a subpœna for one Jones Ross on November 28, 1896, which was returned by the sheriff of McLennan County, not executed; said witness not being found in the county. Appellant states that he would be able to prove by said absent witness that he saw Ransom Leonard, the prosecutor, and another man, standing together on Elm street, talking, and, as defendant and witness approached, the other man, talking to Leonard, called to the defendant and made a proposition to bet with him. The materiality of this testimony is not made to appear by this application, and, when we look to the statement of facts, it is absolutely immaterial whether a transaction of the character as detailed in the application occurred or not. It might have been another transaction, or, if it was a part of the same transaction, it does not militate with the facts constituting the alleged theft in this case. Appellant, in his motion for a new trial, objects to the charge of the court, in stating, in the definition of the offense, that the theft must be committed without the knowledge of the prosecutor, from whom the property is taken, or so suddenly as not to allow time to make resistance before the property is carried away. Appellant insists that the first part of said subdivision does not conform to the charge in the indictment, and states a ground not alleged in the indictment, upon which defendant could be convicted, which instruction was material error, and calculated to injure the rights of the appellant. Subsequently the court, in instructing the jury as to the law applicable to the case, tells the jury, "if they find from the evidence that the defendant committed the offense of theft from the person of Ransom Leonard, as that offense has been defined herein, then find defendant guilty," etc. It is true, the indictment only charges theft from the person by a taking so suddenly as not to allow time to make resistance before the property was carried away, and the court should not have embodied the first part of the definition of "theft from the person" in his charge. However, no exception was taken to the charge in this respect, and the question now is, did the fact that the court embodied this part of the definition of "theft from the person" in his charge prejudice the appellant? In other words, was the jury confused or misled thereby? If there was evidence in the case that the theft had occurred by defendant privately stealing from the person of Leonard the property in question, without his knowledge, and there was also proof that the theft was committed in the other manner — that is, by so suddenly taking it as not to allow time for resistance — then there might be danger that appellant had been convicted under the first portion of the charge, and not under the last. But the evidence here does not present such a case. In this case there is no evidence in the record tending to show that the property was privately taken from the person of Leonard without his knowledge. On the other hand, the proof is absolute that the property was taken with Leonard's knowledge, but so suddenly as not to allow time or opportunity for resistance. So we take it that the bare fact that a character of theft from the person not set out in the indictment was contained in the charge of the court defining the offense, in the absence of any testimony indicating or tending to show that character of theft, could not have operated to the prejudice of the appellant. If a timely exception had been made to the charge of the court, and the court had refused to correct the charge in this respect, under the decisions it might have been regarded as error. But that is not the case here, and, in the absence of some showing that said charge was of a character calculated to work prejudice to the rights of the defendant, it will not be considered a ground for reversal. Appellant also complains of the charge of the court in its definition of principals." If it be conceded that said charge is incorrect as to who are principals, this could not have possibly misled the jury. There was no question that the defendant was present, and aided and abetted in the theft, with guilty knowledge thereof; and the charge, when it comes to apply the law to the facts of the case, directly instructed the jury that if they "found the offense was committed by one "Bully, but that the defendant, Tom Robinson, was then and there present, knowing the unlawful intent of the said Bully, aided him by acts or encouraged him by words in the commission of said offense, if any, to find defendant guilty," etc. No reversible errors appearing in the record, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter].