1. Indictment — Change of, Where Defendant Suggests a Different Name. Our Penal Code requires, that where the defendant or his counsel suggests that he bears a different name from that stated in the indictment, that the indictment be corrected by inserting therein the name of defendant as suggested by himself, and that the style of the case be changed so as to give his true name, etc. Code Crim. Proc., art. 513.
2. Continuance. — An application for continuance is properly refused where there is no probability that the absent witness will ever be obtained; or where it is not probable that he would swear as stated in the application, or that if he did so swear, the jury in the light of the other facts in the case would not believe him.
3. Evidence — Harmless Error. — On a trial for bringing stolen horses into the State, while it was error to permit an officer to testify that he had seized the animals on account of a description of them in a postal card he had received, and turned them over to the owner, Held, that the error was harmless, inasmuch as the other undisputed evidence showed that the owner recovered the horses, and that they were the same found by the officer in possession of defendant.
4. Foreign Laws — Proof of. — Where the statutes of a Territory purport to have been printed by authority of the Legislature, and are properly authenticated by the secretary, they are admissible as evidence to show what is the law of the Territory upon a given subject.
5. Theft — Ownership — Separate Property of the Wife — Allegation and Proof — Variance. — Where the indictment alleged the ownership of the stolen horses to be in H, who was in the possession and control of them when taken, and the proof showed that they were the separate property of his wife, who was living with hint at the time, Held, no variance.
HURT, PRESIDING JUDGE.
This is a conviction for the theft of two mares in Oklahoma Territory, and bringing them into Cooke County, Texas. The indictment is sufficient. Appellant stated to the grand jury that his name was Charlie Davis, and the indictment contained that name. When called upon to plead to the indictment, he suggested that his name was George Sinclair. The indictment was changed so as to charge George Sinclair with the theft. To this appellant objected, reserving his bill of exception. In this there was no error, the code requiring this to be done when the accused suggests that he is not indicted by his real name. The record shows beyond any question that appellant was the person intended to be charged with the offense.
Appellant moved for a continuance of the cause. There is no probability that the witness Frost Hutchcraft will ever be obtained, and, if he should be, it is not at all probable that he or Ollie Mathis would swear that appellant purchased the horses in the Territory or anywhere else; and if they should so swear, under the facts of this case, the jury would hardly believe them.
The facts that Ware had received a postal card, and seized the mares from the description there given, and that they were turned over to the owner upon his order, were not competent evidence in this case. If Ware had seen the mares, he could have so stated, naming the time and place and all the circumstances, with their description. If he placed them with Bass, he could so state. If he had obtained them from appellant, this would be competent testimony. But that he recognized them by the description contained on the postal card was clearly incompetent, or that Bass returned them to the owner upon an order from Ware was absolutely immaterial. But concede these matters to be inadmissible; there was no possible harm resulting to appellant. That the owner recovered his mares from Bass is not questioned. That those mares recovered from Bass were the property of the prosecutor, or rather the mares for the theft of which appellant was being tried, is not questioned. That Ware and others had seen appellant in possession of the same animals is equally certain. Now, then, these being indisputable facts, the postal card and Ware's order to Bass and the identity of the mares from the postal card amount to absolutely nothing.
The statutes of Oklahoma purport to have been printed by authority of the Legislature of that Territory, and were properly authenticated by the secretary of that Territory, and were therefore admissible for the purpose of showing that the appellant, if guilty, would have been guilty of theft under the laws of that Territory.
The indictment alleges, that the mares belonged to and were the property of A.D. Hickok. The proof shows, that they belonged to and were the separate property of his wife, but that A.D. Hickok was in the possession and control of them, and was living with his wife when they were taken. Counsel for appellant contends that in this there is a variance. Not so. See Code Crim. Proc., art. 426; Willson's Crim. Stats., secs. 1258, 1966.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.