Poage v. State , 43 Tex. 454 ( 1875 )

Moore, Associate Justice.

The law applicable to this case was fully and fairly submitted to the jury by the charge of the court. Although the guilt of appellant may not be absolutely and conclusively established by the testimony, still it certainly cannot be said that the verdict of the jury is not supported by the evidence.

Appellant was fully cognizant, before he went into the trial of the case, of "all the facts which he alleges in his amended application for a new trial he will be able to prove at another term of the court. Ho effort was used to procure the testimony of the absent witness, nor is any reason given to account for his failure to do so, or any attempt to explain why he omitted to ask a continuance so as to enable him to get the benefit of the testimony of this witness at another term of the court. In view of these facts, we cannot say that the court was not justified in overruling the motion for a new trial.

The court did not err in admitting evidence showing the character and description of the brand used by Prather, although this brand had not been recorded. The evidence was not offered or relied upon to prove title, but for the purpose, in connection with the other evidence before the jury, of identifying the steer referred to by the witnesses with the one described in the indictment.

Finding no error in the record, the judgment is affirmed.

Aketrmed.