Chandler v. State , 15 Tex. Ct. App. 587 ( 1884 )

Willson, Judge.

1. We cannot say that the court erred in overruling defendant’s application for a continuance. It did not appear upon the trial that the facts set forth in said application, which the defendant stated he expected to prove by the absent witnesses, were probably true. Considering the evidence in the case, we think it quite improbable that such statements were true. (Code Crim. Proc., Art. 560.)

2. It was error for the court to charge the jury that they might, if the testimony warranted it, convict the defendant of the offense of receiving stolen property, he being indicted for theft. {Brown v. The State, this day decided, ante, p. 581.) This charge, however, was not excepted to, was not made a ground for a motion for new trial, and is not even embraced in the defendant’s assignment of errors. In view of the evidence we do not think this erroneous charge injured the rights of the defendant. It is evident to our minds that the jury were not mislead thereby. There was not a particle of evidence proving that defendant received the horse from any person after the theft had been perpetrated, and the jury by their verdict found the defendant guilty as charged in the indictment, which charge was the theft of the horse. If the charge had been excepted to, of course it would have been fatal to the conviction. But, not having been excepted to, and not being fundamental error calculated to injure the rights of the defendant, and which in our opinion did' not injure his rights, we shall decline to disturb the conviction on account of it.

3. We think the verdict of the jury is well supported by the evidence, and that the jury could not reasonably have arrived at any other conclusion than that the defendant committed the. theft.

The judgment is affirmed.

Opinions delivered March 15, 1884.

White, Presiding Judge. I concur in the foregoing opinion: except that, if there had been evidence in the case warranting the charge of the court that the jury might convict the defendant of the offense of receiving stolen property under the indictment for theft, I should hold that such charge was not error.

Affirmed.