Conviction for felony theft, punishment two years in the penitentiary.
Appellant was charged with the theft of two bales of cotton which disappeared from a cotton yard in Abbott, Hill County, Texas, between March 9 and 12, 1926, and were discovered on March 12 at a compress in Waco, some twenty-five miles from Abbott.
Appellant sought a continuance because of the absence of his wife. No question of diligence arises. Complaint of the refusal to continue or postpone the case is made in three bills of exception, neither of which appears to be qualified. The affidavit of the absent witness was attached to the motion for new trial, and its statements accord with the testimony set up in the application as expected from the witness. The court qualifies the bill of exception taken to the refusal of motion for new trial by saying he did not regard the testimony as material or at least sufficiently so as to make it likely that a different result would be obtained if such testimony was present. In this connection we observe that the case was tried at one time when the wife was present, and resulted in a hung jury. *Page 420
Four men positively identified appellant as the man who brought the two bales of cotton in a trailer attached to a Ford car to a certain compress in Waco on the morning of March 10, 1926, arriving at said place about 7 o'clock as testified to by one of the men, having the cotton weighed about 8:30, as testified by two of the others, and sold at about 9:15 or 9:20, as testified by the fourth man. Three of these men went to Bynum, in Hill County, near which village appellant lived, shortly after the cotton was identified by its owner at the compress. A Mr. Pierce accompanied them and brought appellant from his home down to where these men were waiting. When he came Pierce asked these men if appellant was the man they were looking for. One of the men, a Mr. Green — the man who bought the cotton — said, "No, he is not the man." The others said nothing. Green testified on the trial that appellant was the man, and that he knew he was not telling the truth at the time he said to Mr. Pierce that appellant was not the man. After they declined to identify appellant he got in his car and drove away. These four men, in giving testimony, were asked in reference to some particular matters of dress and testified that appellant had on a rather large hat, a long overcoat, etc., when in Waco with said cotton.
The defense was an alibi and a denial of the guilt generally. Appellant testified that he left his home near Bynum on the 9th of March and drove in a Ford car with a trailer attached to Waco for the purpose of getting some hands to work; that he took the trailer to bring their things back in. He detailed his efforts to find hands during the afternoon of the 9th and produced in evidence a list of names which he said he got from the Chamber of Commerce at Waco. He says he found only one man, and this man could not go with him until the next morning. Appellant testified that he then went to the Exchange Hotel and called his wife over long distance and told her he had not been able to get hands but would get one the next morning. He then further said he went to the Cadillac Hotel, which was a small upstairs place, found a negro porter in charge, got a room from this porter, and spent the night in same. He said the next morning about 7 o'clock he found his man and the man told him he had changed his mind and could not go with him. He then left Waco and drove to Hillsboro, where he ate breakfast at the Sullivan restaurant about 8:30 or 9 o'clock, and then drove home, it being about forty-five miles from Waco to Bynum. He reached home about 10 or 11 o'clock. He said he had on a light white hat and had *Page 421 no overcoat on the occasion of his going to Waco. He introduced the negro porter at the Cadillac Hotel, who testified positively that appellant came to his place about 8 o'clock on the night of the 9th and that witness assigned him a room, and then himself remained somewhere around the stairs where he could see all persons who went in and came out during the night, and that appellant did not come out until the next morning somewhere in the neighborhood of 7 o'clock. Appellant also introduced Mr. Sullivan who testified he had a restaurant in Hillsboro on the 10th of March and that appellant came to his place and ate breakfast about 8:30 or 9 o'clock, according to his best recollection, on that date. These matters are stated in order that it may appear that the testimony of apellan's wife, if true, was very material. She states in her affidavit that he had no overcoat when he left home, and that he had on a light hat; that he called her up from some place in Waco on the night of the 9th and said the things to her which appellant testified to; also that he came home on the morning of the 10th between 10 and 11 o'clock. We find ourselves unable to escape the conclusion that this testimony was very material to the defense. It had been raining and the roads were muddy. Mr. Green testified that he gave appellant a check or cotton acceptance for the cotton in Waco about 9:15 or 9:20 a. m. The acceptance which was in evidence showed it had been presented and cashed at The Liberty National Bank on the same day. It might be considered a matter of some difficulty for appellant to have received and cashed this check after 9:20 o'clock and to have driven to Hillsboro, some thirty-three or thirty-four miles distance, in time to eat breakfast by 9 o'clock, and then to reach his home near Bynum by 10:30 or 11 o'clock. The weight of such testimony as affecting the guilt or innocence of the defendant is for the jury. The fact that when the wife gave this testimony on a former occasion, the jury declined to convict him, may be looked to as a circumstance. We are of opinion that the trial court should have granted a new trial.
The judgment will be reversed and the cause remanded.
Reversed and Remanded.
ON MOTION FOR REHEARING BY STATE.