¶1When a defendant in a criminal prosecution applies for a continuance on account of the absence of a witness, the application, though it be the first or any subsequent application, and though the application contain the several requisites enumerated in the statute, is addressed to the sound discretion of the court to whom it is made, and is not to be granted as a matter of right on meeting the requirements of the statute for a first application, as was formerly the case under laws then in force. The rule now is that when an application for a continuance has been overruled and the defendant has been convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application for a continuance was of a material character, and that the facts set forth in the application for a continuance were probably true,' it then becomes the duty of the trial judge to grant the defendant a new trial. Code Crim. Proc. art. 560, clause 6.
¶2Looking back through the trial, and considering the statements of the absent -witness in connection with the testimony of the witnesses who testified at the trial, we are constrained to say that there was good ground to suspect that the evidence it was expected to procure from the absent witness, instead of being of a material character and probably true, was a sheer fabrication, neither *66material nor probably true. There was no error in refusing the application or in refusing to grant a new trial on this account.
¶3The second supposed error assigned is to the effect that the court erred in not charging the jury that the possession of property recently stolen was not sufficient to sustain a conviction of theft, if the accused give a reasonable account of how he came in possession of the property, unless there are other facts showing his guilt. This supposed omission seems to be based upon the idea that the only evidence of the defendant’s guilt was the fact that the property which had been recently stolen was traced to the defendant’s possession, and that the property having been found in his possession was the only evidence of his guilt.
¶4We do not so understand the testimony, as we find it in the statement of facts. In the first place, the defendant after his arrest stated that he had been in possession of the animal, and had traded it to a man in Marlin, giving the man’s name; which statements were subsequently found to be true, and which tended to fix guilt upon him, and which were admitted without objection, and would have been admissible even if objected to, under the provisions of article 750, Code Criminal Procedure, in that his confession was found to be true and led to the discovery of the stolen property. This is not all; in giving a bill of sale he gave it in the name of another person and not his own, and, besides, he is shown to have claimed the property as his own to more than one person and at more than one place, and at the time he traded the animal and before. To one witness he claimed to desire to trade the animal for a work horse, on the pretense that his had been gored by an ox; which went far to negative the idea that he was trading the animal for either the man Henderson or the Mexican Joe.
¶5The testimony did not require of the trial judge such *67a charge as that indicated, by the assignment of errors. It was the duty of the judge to charge the law applicable to every legitimate deduction the jury might reasonably draw from the testimony; and having done this, he was not required to do more.
¶6It is urged in behalf of the appellant that, as there were no circumstances of aggravation proved against the accused, the verdict is excessive, and that a new trial should have been granted on that account! The law has fixed the punishment for the offense of which the appellant has been convicted; the minimum at five years, the maximum at fifteen years. Penal Code, art. 746. When a jury has determined that the accused is guilty, it then becomes their duty to fix the punishment within these limits. The courts have nothing to do with the amount of the punishment (unless absolutely fixed by law. Code Crim. Proc. art. 712), further than to see that it is within the bounds prescribed by the law.
¶7We are of the opinion that the other supposed errors are not well taken, and that the judgment must be affirmed.
¶8 Affirmed.