Appellant was convicted in the County Court of Liberty County of theft of property under the value of fifty dollars, and his punishment fixed at a fine of $200 and thirty days in jail.
The record is before us without any statement of facts. There are four bills of exception in the record. The first complains that the court permitted a deputy sheriff to remain in the courtroom and also permitted the prosecuting witness after he had given his testimony in chief to remain in the courtroom while other witnesses were testifying and then over objection said witness was permitted again to take the witness stand. This bill is qualified by a statement appending thereto by the learned trial judge to the effect that the matters asked the prosecuting witness when called to the stand the second time were entirely new matters and did not pertain to any testimony given theretofore. The pertinence of the matters complained of by bill of exceptions No. 2 does not appear and can not be appraised by us in the absence of a statement of facts. We can not know that the matters pertaining to a pair of gloves were not relevant to the issues made by the testimony of the witnesses, in the absence of such statement of facts. The same is true of the matters in the third bill of exceptions. This bill complains of the refusal of the trial court to permit appellant to withdraw his *Page 352 announcement of ready. From the bill of exceptions we learn that the State introduced certain testimony relative to a pair of gloves found in appellant's truck. The bill presents no error. Same is accepted with a qualification appended thereto by the trial judge from which we learn that no effort was made to withdraw the announcement of ready until the State and the defendant had both closed their entire evidence. If there had been any merit in the proposed withdrawal of announcement, it could not avail when the accused continued the introduction of evidence pro and con until the entire case was finished. One who seeks to claim surprise by reason of some unexpected happening during the trial of the case which he could not have foreseen by the use of reasonable diligence, and from which it appears he is likely to suffer serious injury to his rights, must avail himself promptly of any right to then seek a postponement of the case or a withdrawal of his announcement. In the case before us not only do we think appellant waited too long to make an effort to withdraw his announcement of ready for trial, but also that the matter upon which he sought to base such withdrawal would not have supported the proposition in the first place. As part of the development of its case against appellant the State proved that a pair of gloves found in appellant's truck was a pair of gloves belonging to the owner of the alleged stolen chickens and which had been left by him where the chickens were on the night of said theft. Appellant's contention was that he had bought the gloves and, if we understand the matter correctly, he wished a postponement of the case until he could ascertain the name of the party from whom he bought them and produce him as a witness. The State does not plead its evidence in the indictment. If the rule should be laid down that one charged with crime might wait to prepare to meet the State's case until he heard the witnesses testify and then claim that he had not expected to be called upon to meet such testimony, and that he should be given the right to postpone or continue the case until some future day, — the State might have great difficulty in bringing those charged with crime to trial.
The remaining bill of exceptions relates to testimony concerning the gloves above mentioned. In the absence of the statement of facts we can not appraise the weight of appellant's contention. For aught we know the other testimony in the case fully elucidated and showed the pertinence of the testimony relative to the pair of gloves.
Appellant presented four special charges. The one requesting a peremptory instruction of acquittal, was properly refused. Two of the others were given. The fourth sought an instruction that the jury disregard certain argument. This special charge is not approved by the trial court, nor is it made the subject of a bill of exceptions. *Page 353
We have carefully considered each contention of appellant and being unable to agree with any of same, the judgment will be affirmed.
Affirmed.
ON REHEARING. January 16, 1924.