Stubblefield v. State , 94 Tex. Crim. 444 ( 1922 )

It appearing that proper complaint has been filed, the State's motion for rehearing is granted and the cause considered on its merits.

The stolen property was an axe belonging to Pink McCullough, whose wagon broke down while he was in the woods. He left his axe in the wagon, and on his return several days later, the axe was missing. It was later found in possession of the appellant. When taxed with the theft, appellant stated that he bought the axe from Jim McCormack. This was denied by Jim McCormack. Appellant was a boy and lived with his parents. The axe, when recovered, was at the woodpile of appellant's father. It was not concealed in any way.

Appellant testified that he had purchased the axe for five dollars from Jim McCormack without any knowledge of the fact that it had been stolen.

There was impeaching testimony relating to both the State and the appellant's witnesses. Among other things, a witness testified to admissions upon the part of McCormack that the appellant had gotten the axe from him. This was contradicted.

An application for a continuance was made to secure the testimony of Willie Stubblefield. According to the averments she would have testified to facts which showed that Jim McCormack had admitted to her that he had sold the axe in question to the appellant. She had not been subpoenaed but appellant had twice had process issued for her and by mistake the deputy sheriff had destroyed the subpoena without the knowledge of the appellant. The witness, however, while on the way to the trial, was taken sick, and according to her affidavit, attached to the motion for new trial, would have been present but for her sickness.

While the diligence was not perfect, under the peculiar facts it was deemed sufficient. But for the inadvertent destruction of the subpoena the witness would have been subpoenaed and if subpoenaed, she could not have been present owing to her sickness. This was not controverted and must be taken as true, especially in view of her affidavit attached to the motion for new trial. Branch's Ann. Tex. P.C., Sec. 336. While impeaching the witness McCormack, the absent testimony falls within the rule in Koller v. State, 36 Tex.Crim. Rep. and in Stewart v. State, 52 Tex.Crim. Rep., in that it supports appellant's testimony explaining his possession of the axe and contradicts that of the State's witness who testified that appellant did not purchase the axe from him. Under the facts, we think the court was in error in refusing to grant the application for a continuance.

The State's motion for rehearing is granted, the judgment heretofore rendered is set aside, and the cause is now reversed and remanded.

Reversed and remanded.