The offense is embezzlement; punishment fixed at confinement in the county jail for a period of ten days. *Page 96
The indictment was filed June 26, 1923; the trial took place on August 9th. A motion for continuance was made to procure material testimony of witnesses who were out of the county. The witnesses had not been subpoenaed for the reason that in consultation with the assistant district attorney, who had the case in charge, an agreement had been reached with appellant's attorney to the effect that the case would not be set for trial and probably not be tried at all for the reason that there was an absence of criminal intent, the transaction being one which should be settled in a civil suit. Relying upon this agreement, about the making of which there is no controversy, the appellant refrained from causing the issuance of subpoenas for the witness mentioned in the application for a continuance. The State's attorney concedes that the application should have been granted and appends to his brief a letter from the assistant criminal district attorney of Harris County to the same effect.
From our examination of the record, we concur in the view mentioned and order that the judgment be reversed and the cause remanded.
Reversed and remanded.