Smythe alias W. P. Martin v. The State, 17 Tex. Ct. App. 244

Willsoh, Judge. I. This conviction was had upon an indictment which charges the defendant with the theft of “ an animal of the horse species.”' The proof shows that the subject of the alleged theft was a horse. Why the pleader did not describe the property stolen simply as a horse “ passeth our understanding.” Perhaps he was experimenting to ascertain how closely he could approach to the pitfall of bad pleading without falling into it.

But, whatever may have been his reason for this novel form of description, it is a form not to be commended for its simplicity, however correct it may be in the technology of zoologists. While the pleader, by this unique allegation, has put himself and the courts to unnecessary trouble, still, we think, the indictment narrowly escapes the attack made upon it, and must be held sufficient. In zoology, the horse is a species of the genus equus.

This genus, according to modern naturalists, consists of six distinct, though nearly allied species, namely, the horse, the dzeggithia, the ass, the quagga, the mountain zebra, and the zebra of the plains. (14 Encylopedia Brittanica, p. 199.) If the indictment had described the property as “ an animal of the horse genus” it would unquestionably have been bad, for this would have included an animal of either of the six species of the genus equus.

But instead of the word genus, it uses the word species, which means “a sort, a kind, a class subordinate to a genus ” (Webster’s Primary Dictionary), while the word genus signifies “ a class embracing many species.” (Ibid.) The expression “ an animal of the horse species ” would, therefore, only include the animals known as stallions, geldings, mares, fillies and colts. It would not include any animal belonging to a distinct species, though of the same genus.

As commonly understood, therefore, that is as defined by the standard lexicographers, and as taught in our common schools, the language used by the pleader includes a stallion, a gelding, a mare, a filly, a colt, — in short a horse, and nothing more nor less. Our statute provides that “ wben it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quantity, number, and: ownership, if known, shall be sufficient.” (Code Crim.

Proc., art. 427.) “An animal of the horse species ” is a general description of a horse- — of the hind- of property alleged to have been stolen, and the same is also further designated in this indictment by the allegation of ownership. We are of the opinion that the exceptions t» the indictment were properly overruled. II. In this case the defense was an alibi. The State proved by two witnesses that the defendant was seen in possession of the stolen horse the day after the theft.

One of the witnesses purchased the-horse from him, and is quite positive that the defendant is the-identical man who sold him the horse, though he had never seen the defendant before that time, and did not see him again until after the lapse of nine months.

The other witness did not identify the-defendant so positively as did the first, but said he was satisfied that he was the same man that he saw in possession of said horse;—he did not know the man, but knew the horse; had never seen the-man before, and did not see the defendant until four months after the occasion when he saw him, as he supposed, in possession of the-horse. The defendant proved by his mother, wife and brother, facts which constituted a complete alibi, and the testimony of his mother and brother also showed that one W. B. Mullins was also cognizant of the facts which constituted the alibi.

Defendant made application to continue the cause on account of the absence of Mullins, by whom, he stated, he expected to prove an alibi. His application-showed that he had used legal diligence to obtain the testimony of this witness, and the showing of diligence was not controverted. The court refused the continuance, and refused a motion for new trial, one of the grounds of which was the refusal of the application for a continuance. We are of the opinion that the court erred in refusing the application for a continuance, and in refusing a new trial.

The testimony of the witness Mullins was very material to the defendant, and, the object of it being to prove an alibi, it does not come within the objection that it is merely cumulative evidence. “ That the evidence is. cumulative, when sought to establish an alibi, is no reason for its-exclusion; on the contrary, the greater the number of witnesses to the facts establishing it, the stronger ordinarily would be our reliance upon and conviction of its truth.” (Pinckford v. The State, 13 Texas Ct. App., 468; Lawson v. The State, Id., 264; Tyler v.

The State, Id., 205.) Besides, this witness Mullins was in no way related to the defendant, and was apparently a disinterested witness, and more likely for that reason to be credited by the jury than the mother, wife and brother of the defendant. It has been laid down by this court as a ¡role of practice, that it will not revise the action of the court in refusing a continuance unless it appear from the evidence adduced on the trial that the testimony of the absent witness is not only material but that it is probably true, ( Wooldridge v. The State, 13 Texas Ct. App., 443; St. Clair v. The State, 11 Texas Ct.

App., 297.) But, when it does appear from the evidence that the absent testimony is material, and is probably true, and that due diligence has been used to obtain it, this court will grant the defendant a new trial; (Casinova v. The State, 12 Texas Ct. App., 554.) In this case, the guilt of the defendant rests entirely upon the ■opinion of two witnesses as to his identity. Neither of these witnesses ever saw him, before they saw him in possession of the stolen horse, and never saw him again until months thereafter.

One of them was only casually, and for a short time, acquainted with him, and the other one was not acquainted with him at all. Is it improbable, under these circumstances, that these witnesses are mistaken in the identity of the defendant with the man who had the horse? If Mullins were to testify that the defendant, at the time the horse was stolen, was at another place than where the theft was committed, and could not, therefore, have been the party who stole the horse, would not his testimony be probably true?

Our conclusions are ■that the testimony of the absent witness Mullins is not only material, but that it is probably true, and that the court erred in not granting the continuance and in not granting a new trial; wherefore the judgment is reversed and the cause is remanded. Reversed and remanded. [Opinion delivered December 3, 1884.]