Barrett v. State , 18 Tex. Ct. App. 64 ( 1885 )

Willson, Judge.

The indictment is in strict accordance with the statute defining theft, and the exceptions thereto were properly overruled. (Thompson v. The State, 16 Texas Ct. App., 74.)

It was not error to refuse defendant’s application for a continuance, because the same failed to show affirmatively and clearly that due diligence had been used to obtain the testimony of the absent witnesses. It did not show at what times the attachments which had been issued for said witnesses, and which had not been executed, were returned. It may be that they were returned in ample time before the trial to have enabled the defendant to have had alias attachments issued and executed upon said witnesses. An application for a continuance should set forth fully and distinctly the diligence used to obtain the absent testimony, or such facts as will excuse the use of diligence; and it must appear that all the means provided by law were resorted to by the defendant to obtain the testimony, and were resorted to promptly, or that facts existed which excused him from exercising such diligence. This trial was had June 14, 1884. On April 21, 1884, the attachments for the witnesses were issued. The return of the sheriff upon one of these is dated April 2S, 1884. On the other the return is not dated. There is nothing in the application or the record which indicates when the writs were returned into the trial court. If they were returned in time to allow alias writs to be issued to the counties where the witnesses were alleged to reside, and in time for said writs to be executed and returned before the time of trial, then it devolved upon defendant to obtain the issuance of alias writs, and to cause them to be properly forwarded to the proper officers, or to show sufficient reason for not doing so. (Clark’s Cr. Law, p. 471, note 186.)

There was evidence tending to show that defendant had purchased the alleged stolen cow from one Baker. Upon this issue the court charged the jury as follows: “If you believe that defendant had possession of said cow, then if you have a reasonable doubt as to whether or not he purchased said cow from Baker, in good faith, believing that Baker had a right to sell the cow to him, you will acquit the defendant.” This charge is erroneous in two respects: 1. It gives the benefit of the reasonable doubt, upon this issue, to the State as well as the defendant. 2. It makes the defendant’s innocence of the charge depend upon his good faith and his belief in Baker's right to sell. Such charge, under the evidence in this case, was calculated, we think, to injuriously affect the defendant’s rights, (Clayton v. The State, 15 Texas Ct. App., 348; McAfee v. The State, 14 Texas Ct. App., 668.) Because of this error the judgment will be reversed and the cause remanded.

On the trial of this case the State introduced a witness named Pyland, who had just before the trial, in the same court, pleaded gu.lty to a charge of theft of cattle, and the jury had assessed a punishment of two years’ confinement in the penitentiary against him. He testified to facts which were very damaging to the defendant, and without which this conviction could not be sustained. In the defendant’s motion for a new trial, and in the affidavit of one of his counsel accompanying it, it is made to appear that this witness had told the county attorney that he knew facts which would convict the defendant; that the county attorney thereupon agreed with said witness that if he, the witness, would testify all he knew about defendant in this case, the judgment of conviction against him, which had at that time been obtained, should be set aside, and he should be turned loose.

There is nothing in the record controverting the sworn statements of the defendant and his counsel in relation to this matter. We must, therefore, consider the statements as true; but while treating them as true, because uncontradicted and unexplained, we still hope that they are founded upon a mistake of facts, and can be explained consistently with justice and fair dealing on the part of the able county attorney. As presented to us, the transaction was such as to demand judicial condemnation, and w7e think the learned trial judge, in the absence of any contradiction or explanation of the sworn statements of the defendant and his counsel, should have promptly set aside the conviction upon this ground. It is not the policy of the State to have her citizens convicted of offenses by other than fair means and unbought testimony. It may be true that the witness Pyland testified truthfully; but if, as charged, he had placed before him the alternative of serving a term in the penitentiary, or of testifying to the guilt of the defendant, he certainly testified under a very strong temptation, the influence of which was adverse to the defendant. He testified as a bribed witness — a witness testifying for his own liberty; testifying to secure a boon which perhaps no amount of money could have induced him to part with. That he was testifying under this powerful temptation was unknown to the defendant and to the jury. Had the fact been known to.the jury, it is reasonable to suppose that it would have been gravely considered by them in passing upon his credibility, and in weighing his testimony.

It was alleged in the indictment that the animal alleged to have been stolen was the joint property of Trigg and Johnson. It was proved that they were the owners, but that one Bolin also owned an interest in the same. It was sufficient to prove the want of consent of the alleged owners, Trigg and Johnson, and it was not a variance between allegation and proof that Bolin also owned an interest in the property. (Code Crim. Proc., art. 426.)

Ho other alleged error than those above discussed has been presented in such manner as to authorize a consideration thereof. The judgment is reversed and the cause remanded.

Merer sed, and remanded.

[Opinion delivered April 25, 1885.]