In this case the judgment of the District Court was affirmed at a former day of this term. Appellant has filed a motion for a rehearing, in which he complains that the court in holding that the lower court did not err in overruling his application for a continuance did not set out all that he stated he expected to prove by the witness Joe Nash, and that the court must not have considered the remainder. Defendant stated he expected to prove by the witness Nash "that his codefendant, Goe. Parrish, told him the said Joe Nash, in Archer City, Texas, some time during the month of March, 1910, in the pool hall, in Archer City, Texas, that he had it in for the defendant, Mont Hart, and that he intended to implicate him in some trouble that would send him to the penitentiary, and that when the said Parrish made this statement to the witness Joe Nash, that the *Page 513 witness asked the said Parrish how he intended to get this defendant into trouble, and that the said Parrish told him that he could tell that this defendant was guilty of breaking into store-houses and stealing goods, and that he could get a party to help him leave some goods at the house of this defendant, and that when they were found the proof would be sufficient to convict this defendant, and that the people here in the town of Archer City would be ready and believe that the defendant had broke into some store and had stolen the goods that were found in his possession; that he can and will prove by the witness Joe Nash that he was on very intimate terms with the defendant Geo. Parrish at the time the said Parrish made this statement to him, and that the said Parrish at said time asked this said witness not to tell what he had said to him, nor to give away his scheme to catch this defendant."
Had there been any effort made on the trial of this cause to show that defendant had been imposed on, and that the stolen goods had been placed in his house without his knowledge, this testimony might have become material. But in the record there is no explanation of the defendant's possession of the stolen goods. On the other hand, the record shows that defendant approached Midford Dickson and others, after his arrest, and tried to prevail on them to testify that the goods found in his house belonged to him and were in his possession prior to the night of the burglary. The testimony sought from this absent witness, in the condition the record is brought to us, could not have been material, and, taken in connection with the evidence on the trial of the case, it is apparent the testimony would not be true. Weathersby v. State, 29 Texas Crim. App., 278; Carver v. State, 36 Tex.Crim. Rep.; Koller v. State, 36 Tex. Crim. 496.
Admit that the witness would testify that Parrish had made such statement to him, the record shows that the store was burglarized at night; that night defendant hired a buggy from a livery stable; defendant was seen to drive the buggy out of the stable; the buggy tracks were traced to the store burglarized, and from the store to defendant's residence, where a portion of the stolen goods were found. He carries the buggy back to the stable just before daylight. There are signs on the buggy showing the stolen goods had been hauled in it. Defendant tries to get witnesses to testify that he was in possession of the goods (found at his house) before the night of the burglary, and failing in this, no explanation of his possession is found in the record. Upon a trial, there must be something shown whereby the testimony of an absent witness would be material. In this record there is nothing rendering this testimony material.
The motion for rehearing is overruled.
Overruled. *Page 514