#### W. P. Anderson v. The State.

No. 782.

Decided November *25,*1893.

[Note.—This case, though decided several years ago, was ordered reported, and only came to hand the 9th daj' of November, 1899.—Reporter.]

1. Continuance—Absence of Statement of Facts—Practice on Appeal.

On appeal, in the absence of a statement of the facts, the court can not revise the action of the court in overruling an application for continuance, it being impossible to determine whether the proposed testimony was either material or probably true.

*2.*Theft of Cattle—Evidence.

On a trial for theft of one head of cattle, it is not competent for defendant to prove that his stepfather, since deceased, claimed the animal as his own.

3. Same—Unknown Owner—Charge.

Where an indictment for theft alleges ownership in an unknown person, it is only in the event that an issue is raised by the evidence as to the diligence used by the grand jury in trying to ascertain the owner’s name that the court is required to submit such issue in the charge to the jury. In the absence of a statement of facts, it can not be determined whether or not such issue was raised.

4. Same—Honest Mistake—Charge.

On a trial for the theft of one head of cattle, the necessity -for a charge as to a sale of the animal by defendant through an honest mistake, believing the same to be the property of his mother, can not be determined in the absence of a statement of facts.

Appeal from the District Court of Atascosa. Tried below before the Hon W. W. Walling, Special Judge.

Appeal from a conviction of theft of one head of cattle; penalty, two years imprisonment in the penitentiary.

There is no statement of facts in the record.

*C.*(?. *White,*for appellant.—The

ownership of the animal having been alleged to be unknown to the grand jurors, it was error for the court to *691fail to submit to the jury whether the grand jury had used due diligence to ascertain the owner. Jorasco v. State, 6 Texas Crim. App., 238; Williamson v. State, 13 Texas Crim. App., 514; Langham v. State, 26 Texas Crim. App., 532; Atkinson v. State, 19 Texas Crim. App., 462; Brewer v. State, 18 Texas Crim. App., 456.

*B. L.*Henry, Assistant Attorney-General, for the State.

HURT, Presiding Judge.

This is a conviction of cattle theft. Appellant reserved a bill of exceptions to the action of the court in refusing his application for a continuance of the cause.. There is no statement of facts in the record. As set forth in the bill of exceptions, the facts proposed to be proved by the absent witnesses may appear to he material; but upon the trial the evidence may have shown conclusively that they were not material, and if material, were not probably true. This being the case, we can not revise the action of the court refusing the continuance, in the absence of the facts.

2. Appellant objected, reserving his bill of exceptions to the State proving by several witnesses the custom of stockmen in regard to selling beeves, etc. This evidence was introduced to show that neither the defendant nor his mother would have kept the animal in question as long as it was shown they did. Whether this was material or important testimony we know not. It may have been harmless.

3. Defendant proposed to prove by Colvin Musgrove that “on or about the-- day of-, 188—, his (defendant’s) deceased stepfather talked about the animal set forth in the indictment, claiming the same as his own,” etc. This was not competent testimony,' and, if material, may not have been probably true.

4. The facts proposed to be proved by James Lyons, as to what Mus-grove said and did with reference to the animal in question, may have been material, but in the absence of the statement of facts, we can not determine that the facts were probably true.

5. The objection to the charge of the court, that it failed to submit to the jury the question of diligence used by the grand jury in ascertaining the owner of the alleged stolen animal may or may not have been well taken. If the State failed to prove proper diligence on the part of the grand jury to ascertain to whom the animal belonged, then the court should have submitted that question to the. jury. On the other hand, if such proof was made, then there could have been no injury resulting to defendant in failing to submit such a charge. When the evidence on this subject is of such a character as to present an issue on the subject of diligence, the court should submit it to the jury; but in this case the evidence may have proved conclusively that proper diligence was used, or the facts on the trial may have established beyond question that the owner of the animal was unknown, as alleged. We can not assume that there was any testimony in this case tending to show that defendant dis*692posed of the animal through an honest mistake, believing the same to be-the property of his mother; hence, in the absence of the statement of facts, a charge upon mistake may n it have been called for by any evidence in the case. The judgment is affirmed.

*Affirmed.*