ATKINS
v.
STATE.
Court of Criminal Appeals of Texas.
Nov. 26, 1902.
 Appeal from district court, Clay county; A. H. Carrigan, Judge.
 J. S. Atkins was convicted of theft, and appeals.  Reversed.

Atkins v. State
> KeyCite this headnote
> 110    CRIMINAL LAW
> 110XIX   Continuance
> 110k588    Grounds for Continuance
> 110k598      Diligence

> 110k598(5)  k. Failure to discover whereabouts of witness.
Tex.Cr.App.,1902
Where the offense was committed about July 1st and the trial was had in the following October, an application for continuance because of the absence of defendant's sister, which showed no effort to discover her whereabouts, did not show diligence justifying the granting of a continuance.

Atkins v. State
> KeyCite this headnote
> 110    CRIMINAL LAW
> 110XIX   Continuance
> 110k602    Application and Affidavits for Continuance

> 110k603.2  k. Sufficiency of application in general.
Formerly 110k603(2)
Tex.Cr.App.,1902
An application for a continuance on the ground of an absent witness, which showed that the witness had been summoned, and was too sick to travel, so as to appear, but without showing the materiality of the witness, was properly refused.

Atkins v. State
> KeyCite this headnote
> 110    CRIMINAL LAW
> 110XIX   Continuance
> 110k602    Application and Affidavits for Continuance
> 110k603.3    Allegations or Averments

> 110k603.3(7)  k. Facts expected to be proved by absent witness.
Formerly 110k603(7)
Tex.Cr.App.,1902
An application for continuance for an absent witness which does not state what defendant expects to prove by her but refers to his own testimony in the statement of facts to show the materiality of her testimony is not a sufficient presentation of the matter.

Atkins v. State
> KeyCite this headnote
> 234    LARCENY
> 234II    Prosecution and Punishment
> 234II(B)   Evidence
> 234k54       Weight and Sufficiency

> 234k60  k. Ownership and possession or custody of property.
Tex.Cr.App.,1902
Where, on a prosecution for the theft of the property of T.F.T., the record showed that none of the witnesses testified as to the initials of the owner, but merely called him by his last name, there was a failure of proof, entitling defendant to a new trial.

Atkins v. State
> KeyCite this headnote
> 234    LARCENY
> 234II    Prosecution and Punishment
> 234II(C)   Trial and Review
> 234k68       Questions for Jury

> 234k68(1)  k. In general.
Tex.Cr.App.,1902
The evidence in a prosecution for theft held to have sufficiently established the corpus delicti, so that defendant was not entitled to an instruction that his uncorroborated confession was not sufficient to support a conviction.

Atkins v. State
> KeyCite this headnote
> 234    LARCENY
> 234II    Prosecution and Punishment
> 234II(C)   Trial and Review
> 234k68       Questions for Jury

> 234k68(1)  k. In general.
Tex.Cr.App.,1902
On a prosecution for theft the owner of the property alleged to have been stolen was not introduced to prove his want of consent to the taking. The want of consent was proven by circumstances as to what occurred between the owner and defendant in reference to the recovery and surrender of the money. Defendant testified that the owner had removed from the county, and that his whereabouts was not known.  Held, that the court properly refused to instruct the jury to acquit for failure to prove the want of consent.

 *292 **745 L. C. Barrett, for appellant.
 Robt. A. John, Asst. Atty. Gen., for the State.

 HENDERSON, J.
 Appellant was convicted of the theft of money over the value of $50, and his punishment assessed at confinement in the penitentiary for a term of two years.
 Appellant filed an application for continuance, based on the absence of Mollie Thassler, sister of appellant.  It is alleged that she was at the date of the commission of the offense a resident of Clay county, and since said time she had removed, and appellant had not been able to discover her whereabouts.  The alleged offense was committed about the 1st of July, 1902, and the trial was had in October following.  Appellant claims that he had been confined in jail a good portion of the time, and was unable to exercise diligence to ascertain the whereabouts of said witness.  No effort is made on his part, as disclosed in the application, to discover where she had gone.  We do not think that any diligence was shown to have procured this testimony.  Appellant does not state in said application what he expected to prove by said witness, but refers to his own testimony in the statement of facts.  We do not think this is a sufficient presentation of the matter.  However, concede that it is, it does not occur to us that the absent witness would likely swear to the facts testified to by appellant himself; or, if she did, that the jury would probably 
regard it as true.  Appellant also desired the testimony of Laura Atkins, his wife, alleged to reside in Milam county, some 300 miles distant, whom he alleges had been summoned, and did not appear, because she was sick with typhoid fever, and not able to travel.  The materiality of said witness is not shown.  We see no reason to revise the action of the court in regard to the application for continuance.
 We do not deem it necessary to discuss the matter of appellant's illness at the trial.  The physicians testified that he was able to go to trial, and it does not appear that anything occurred during the trial to indicate that he was not in a condition to be tried.
 Appellant asked the court to instruct the jury to acquit him on the ground that the want of consent of the alleged owner had not been proven.  It is true that this want of consent was not proven by direct evidence; that is, the witness T. F. Thassler was not introduced on the stand, and his want of consent directly proven. However, this want of consent was abundantly proven by the circumstances as to what occurred between Thassler and appellant in regard to the recovery and surrender of said money by appellant to him after the theft. If it be conceded that the state did not prove that the alleged owner, T. F. Thassler, was not accessible, then this testimony was supplied by appellant himself.  He testified that the alleged owner lived up about *293 Charley, in Clay county, with his wife, Mollie Thassler, sister of appellant.  They 
lived there in the fore part of July.  They had gone off from there about the last of August, and that he had never been able to find where they went, and does not know where they are now.  So that this testimony relieves the state from the burden of showing that the alleged owner was not amenable to process.
 Appellant also asked the court to instruct the jury that the naked confession alone of appellant, uncorroborated by other testimony, is not sufficient to establish the body of the offense, nor will it support the conviction.  This charge, abstractly speaking, is the law; but it was not applicable to this case, inasmuch as there was other testimony establishing the corpus delicti aside from the confession.  Swend and Pickett, deputy sheriffs, and Stearns, city marshal, testified for the state.  Their testimony shows appellant was arrested for this offense, and brought into the presence of Thassler, the alleged owner, who was his brother-in-law.  Defendant was properly warned, and denied having the money.  Thassler told him that it was money he had worked for on the railroad, and he intended to buy seed wheat with it, and, if he would surrender it, he would not prosecute him; and appellant then pulled it out of his pocket, and gave it to Thassler, the money consisting of three $20 bills. Thassler asked him where he got it, and defendant said he got it from Thassler's wife's slipper.  Howell, another witness, testified that he asked appellant about the particulars, and he told him that Thassler was gone from home over in the Indian Territory, and that some one had come there in the 
night while they were asleep, and stole $60 from his brother-in-law; and the thief had taken some $6 or $7 from him at the same time, and took his pants, **746 and left them out in the garden, where appellant found them the next morning.  He told another witness the reason he put his pants in the yard the morning of the robbery was because he wanted to make the Thasslers believe he had lost some money also, to keep them from suspecting him.  These conversations, and what was done and said between defendant and Thassler, it occurs to us, sufficiently establishes the corpus delicti, and the requested charge was not called for.
 We think the character and value of the money was sufficiently alleged and sufficiently established, and the charges requested on that subject were not called for.  The court gave the requested charge predicated on appellant's testimony to the effect that said money was given to him by his sister, and instructed the jury to acquit him if they found such to be true.  This was his defense, and this charge adequately presented it.
 In the amended motion for new trial appellant set up that there was no proof that the money was taken from the possession of T. F. Thassler, and he insists that the record nowhere shows this fact. We have examined the same, and none of the witnesses testified as to the initials of Thassler.  They merely call him Thassler.  While there is no variance here, inasmuch as the indictment charged the theft to be from T. F. *294 Thassler, and the proof showed that it was 
stolen from Thassler, yet there is evidently a failure of proof. The initials are nowhere proven.  We cannot assume, in the absence of evidence, that it is the same Thassler.  Nor can we look to other portions of the record, outside of the statement of facts, in order to supplement the proof which should have been in the statement of facts.  Because this allegation in the indictment is not shown by the statement of facts to have been proven, the judgment is reversed, and the cause remanded.
Tex.Crim.App. 1902.
ATKINS v.  STATE.
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