The appellant was convicted of a misdemeanor. He was charged with the theft of twenty-one turkeys from Sidney Murray. Murray was the owner of a turkey hen with twenty-one young turkeys. They were in the habit of roaming over the neighborhood and returning at night. They failed to return for two or three days prior to March 9, the owner attributed such failure to the fact that they were across the creek, and that there had been very heavy rains. Searching for them, his wife. Isabella Murray, went to the home of Rofino Gonzales, and there she found the turkey hen, which was identified by certain marks, and she concluded by the conduct of the hen that she was fretting for the loss of her young. Mrs. Murray made inquiry of the wife of Gonzales, but was informed that she had no knowledge of the turkeys. Rofino Gonzales testified that in the daytime on March 9, while a turkey hen and a number of young turkeys were near his house and in view of it, the appellant and one DeLeon borrowed from the witness a sack, and caught the little turkeys and put them in it, and carried them away in the direction of their home, which was nearby. The wife of Gonzales gave similar testimony. The appellant introduced testimony tending to show an alibi, and testified, denying that he had been in possession of the turkeys. They were not found. *Page 86
After the evidence was closed, and before the argument was completed, the appellant by motion sought permission of the court to introduce testimony by recalling Isabella Murray and Sidney Murray, and making proof by them that Rofino Gonzales had offered to pay for the turkeys if they would not take the matter into court. The statute, Art. 718, C.C.P., makes it discretionary with the court to permit the introduction of evidence at any time before the argument is closed. Pool v. State, 51 Tex. Crim. 596; Webb v. State, 69 Tex.Crim. Rep., 154 S.W. Rep., 1013; Greenwood v. State, 74 Tex.Crim. Rep., 168 S.W. Rep., 100. This discretion is a judicial one, and when it appears that the ends of justice will be subserved by the introduction of testimony, the privilege should not be denied, in the absence of some reason therefor. The witnesses whom the appellant desired to introduce we understand to have been present and available, and there is nothing suggested in the record which would indicate that any interference in the conduct of the case or unreasonable delay would result by complying with the request. It is also made clear by the bill that the witnesses would have given the testimony. The stolen turkeys were never found in the possession of the appellant, nor were those which it was claimed that appellant put in a sack identified as the stolen turkeys, except by circumstances. The turkey hen was found near the home of the witness Gonzales, and his wife was called upon at the time to explain the absence of the little turkeys when the hen was found near her place. This the appellant claims she failed to do, though she and her husband, Gonzales, testified upon the stand to circumstances indicating that appellant had borrowed a sack and carried off the little turkeys. His effort to induce the owners to forego a prosecution, and his offer to pay them for the turkeys, were circumstances favorable to the appellant, tending to exculpate him, tending to discredit Gonzales, and to emphasize the suspicion cast by the circumstances upon him as the offender. It is in all cases proper to prove by competent evidence that the offense was committed by a person other than the accused, (DuBose v. State, 10 Texas Crim. App., 230), and in a case depending wholly upon circumstantial evidence, it has been held that proof of this character may be made by introducing the confession of another. Blocker v. State, 55 Tex.Crim. Rep.. Under this rule, in view of the facts as they stand in this record, we believe that the trial court was in error in refusing to re-open the case, to the end that the newly discovered facts might be disclosed to the jury.
Because of this error, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 87