In our original opinion we accepted the statement of the trial judge that appellant's motion for continuance was a second motion, and as such it was properly overruled by the court. Upon further investigation it is revealed that when the case was called on the 24th day of November, 1947, the defendant made his first motion for continuance which was by the court overruled. At this time the court was engaged in the trial of another case. When that case was concluded the trial court, on the same day, again called the case involved in this appeal and the matter was presented to him in an identical motion. This he overruled and referred to it as his second motion. Appellant had received no benefit from the motion filed by him and the State had not changed its position because of it.
We think this was re-presenting the same motion and that it stands before us now in the position of a first motion. As such, it should have been granted. We quote from said motion the following:
"This is a second application, but in fact the first, as the cause was called and the defendant granted leave to file his motion for continuance, and when the same was prepared, and before filing the Court was engaged in the trial of another case, but read the same and indicated he would overrule the same, and before this cause was called for trial, this motion was prepared, and now presented to the Court, which in reality makes this his first application for continuance, as the defendant has never announced in this cause."
However the matter may be viewed, the "First Motion" was overruled and the error thus committed is brought forward for our consideration.
As stated in the original opinion, several bills of exception are not considered in this appeal. In the event of another trial, however, we caution against the admission of evidence of transactions which have no relationship to the offense for which the prosecution is had.
We think, too, that the defendant's testimony raises a question as to whether or not he took any money other than that which he claimed belonged to him. His defense on this issue should be submitted to the jury. *Page 309
Appellant's motion for rehearing is granted. The cause is now reversed and remanded for a new trial.