George Wimberly v. The State, 22 Tex. Ct. App. 506

White, Presiding Judge. The indictment in this case, which was for theft of a filly, was presented and filed in the district court on the third day of February, 1886, and the alleged theft, as therein charged to have been committed, is averred to have been so committed on the twentieth day of May, 1881. It will be noted that, from the date of the alleged commission of the theft (twentieth May, 1881), to the filing of the indictment (third February, 1886), was about four years, eight months and seventeen days.

At the trial, the defendant’s witnesses testified most positively and emphatically that defendant had taken possession of, claimed and used the animal from the fall of 1880; and one of his witnesses, George Gillis, swears that he, witness, sold the animal to defendant in the fall of 1880.

If defendant stole the animal, or bought and took possession of her in the fall of 1880, then more than five years had elapsed from such taking to the finding of the indictment; in which case the prosecution would be barred by limitation, our statute declaring that “an indictment for theft punishable as a felony may be presented within five years and not afterward.” (Code Crim.

Proc., Art. 198.) Upon the question of limitation thus raised by the evidence, this court simply charged the jury that if they believed “from the evidence that the defendant, George Wimberly, did, in ¡Navarro county, Texas, on or about the twentieth day of May, 1881, or at any time within five years prior to the third day of February, 1886, the date of the finding of the indictment in this case, fraudulently take,” etc.

Special requested instructions upon the subject, which were asked by defendant’s counsel and refused by the court, and bill of exceptions saved, were as follows, viz.: “If you believe from the evidence in this cause, or if you have a reasonable doubt as to the same, that this defendant acquired pos session of the animal more than five years before the third day of February, 1886, you will find the defendant not guilty, whether you believe he actually took said animal or not, as under such circumstances the offense is barred by limitation.” “If, under the instructions before given you, you should find that the alleged taking was under such circumstances as would constitute• theft, your next inquiry would be as to the time of such taking, and if you should find that such taking occurred prior to the third day of February, 1881, or if you have any reasonable doubt upon this point, then you should find the defendant not guilty.” The learned judge explains his refusal to give these instructions to be because they were given in substance in the general charge.

We do not think they were. “A defendant is entitled to a distinct and affirmative, and not merely an implied or negative, presentation of the issues which arise upon his evidence.” (Irvine v. The State, 20 Texas Ct. App., 13, and authorities cited.) It was error to refuse the instructions.

A defendant’s application for a continuance, made at a previous term of- court, provided he was in actual custody at the time, and not merely upon bond, has been held to be so far in the nature of a confession or admission as that the same can not be used subsequently against him, unless he was previously warned that it might be so used. (Austin v. The State, 15 Texas Ct. App., 388. See also Adams v. The State, 16 Texas Ct. App., 162.) The question is not affected by the fact that, since the continuance was moved for, the indictment was quashed for invalidity, and a new one found for the same offense.

But in this case defendant was not in actual custody, but on bail, and there was no error. Other errors are assigned and ably presented by appellant’s counsel, but, in as much, as they are not likely to arise at another trial, they will not now be discussed. Opinion delivered December 4, 1886. For the errors above mentioned, with regard to the refused instructions, the judgment is reversed and the cause remanded. Reversed and remanded.