Holder v. State , 13 Tex. Ct. App. 601 ( 1883 )

Hurt, J.

The appellant was convicted of the theft of a horse, the property of W. W. Ivie.

The theory of the prosecution is, that Holder and one John Burton stole the horse. In support of this theory, the State proved, by John Williams, that, on the twenty-seventh day of December, 1882, about dark (the same being the night on which the horse was taken), the defendant Holder and one other man were seen on the roadside in the creek bottom, about two hundred and fifty yards from Ivie’s house; that they were not in the road, nor were they traveling; that it was too dark for the witness to see the features of the men. The witness spoke to them. Holder spoke, and was recognized by the witness. Being asked by the witness if he had moved that day, Holder answered “Yes;” and, in answer to the question what he was doing there in the bottom at that time of the night, he said that he was hunting for his old gray mare. ***** The witness did not know the other man, “but he was about Holder’s size.” * * * “He (the other man) did not speak while the witness was there.”

The appellant moved for a continuance for the want of the testimony of several witnesses. By Bud Henderson, if present, appellant swore that he expected to prove that he, Henderson, was the man that was with the defendant on the night the horse is alleged to have been taken, when John Williams, the State’s witness, met them in the bottom near Ivie’s; and that said Bud Henderson traveled with the defendant some distance beyond Ivie’s, and that the defendant did not have Ivie’s horse in his possession at that time; and, further, that John Burton was not with him, the defendant.

The indictment was filed on the ninth day of February, 1883. The appellant was arrested and placed in jail on the same day. On the twelfth day of the same month, counsel was appointed by the court to defend the defendant. In his motion for continuance, he states that as soon “as he could confer with his counsel, he procured the issuance of an attachment, returnable instanter, for this and other witnesses, which has not been returned.”

Was the above a good and sufficient showing touching the diligence used to procure the attendance of the witnesses? We are of the opinion that it was. Is the evidence of Henderson material and probably true? There is no evidence in the record tending to criminate the appellant with anything like the strength and cogency of that of the witness Williams; hence, the testimony of Henderson is not only material, but is of the first importance to the defendant. Is it probably true? There is no conflict in the evidence of Henderson and that of Williams. The testimony of Henderson meets and neutralizes some of the inferences which were, no doubt, drawn from the facts related by Williams. But, suppose that there was a direct conflict in the testimony of these witnesses, should we hold, therefore, that the expected evidence of the absent witness was not probably true? To do so, would be to assume the province of the jury, and to decide at the threshold who was or who was not worthy of credit, there being but two witnesses. We will not extend this subject further, as there is no conflict in the evidence of these witnesses.

We are of the opinion that the court should have continued the cause, and erred in overruling the defendant’s motion for a' new trial, based upon this ruling on the motion to continue.

We are also of the opinion that the evidence does not support the verdict. But, as the cause will be remanded for another trial, we will not discuss the facts.

For the error of the court in not granting a new trial, based upon the erroneous action of the court in overruling the motion for continuance, and because the court erred in not granting a new trial upon the ground that the verdict is not supported by the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered March 17, 1883.