The defendant was indicted at the November term, 1878, of the District Court of Llano County, for the theft of a gelding, the property of A. J. Steagall. He was tried and convicted at the April term, 1879, of said court, and his punishment was assessed at confinement in the penitentiary for the term of six years.
There are only two questions raised in the record which *509we propose to consider. They are in the ruling of the-court, first, on defendant’s application for a continuance and, second, on the application of defendant to strike out a portion of the answer of the State’s witness Steagall,, which was not responsive to the question asked him. The-evidence on the part of the State shows, substantially, that Steagall employed defendant to pick cotton for him in the-fall of 1878. Steagall testified that defendant made a very-faithful hand, and worked for him six or seven weeks. At. the end of that time defendant desired to go over to a Mr.. Haynes’s, who wanted some hands to pick cotton, about eight miles distant, to see if defendant could get work from him, and borrowed Steagall’s gelding to ride. He was to return the same day. Steagall saw nothing more-of the defendant until he saw him in Llano County jail, after he was indicted for the theft of said gelding, and has-not seen his gelding since the morning he loaned him to-defendant. He never gave the defendant his consent to dispose of said gelding, or to keep him. The theory of thedefence was that, after leaving the house of Steagall, the defendant met up with one Adolph Gisecke, who resided in the county of Blanco, State of Texas, and was in a wagon, on his way to the city of Austin, and that defendant concluded to go with Gisecke to Austin, and turned Steagall’s gelding loose on his regular range, on the same day he borrowed him, expecting said gelding to return home.
The application for continuance was for the want of the-testimony of the witness Adolph Gisecke, to prove the facts relied on by the defence; and the defendant has set out, in his application for continuance, the diligence used by him to procure the attendance of the witness at the trial of the cause.
The diligence used was a sufficient compliance with the-requirements of the statute on a first application, especially in view of the fact that, immediately after the adjournment, of the court, the defendant was removed from the county *510of Llano to the jail of Travis County, for safe-keeping, where he remained until he was carried back to Llano County to stand his trial, and the further fact that the counsel appointed by the court to defend him were nonresidents of Llano County. If the defendant borrowed the gelding, and did not appropriate him to his own use, but turned the animal loose on his accustomed range, thinking he would go home, and the owner lost his gelding, defendant would be responsible for his value, but not guilty of theft. We believe that defendant was entitled to have the facts which he stated in his application he could prove by the absent witness submitted to the jury, to enable them to pass upon the whole case.
On the trial of the cause, the following question was asked, by counsel for defence, of the witness Steagall, to wit : “ Did you inquire of Adolph Gisecke about your gelding? ” To which question said witness made the following answer: “I did not inquire of Gisecke about the gelding, because people told me there was no such man living in the county.” The defendant objected to all that part of said answer which referred to what was told witness, because the same was not responsive to the question asked, and because the same was hearsay evidence, and asked that the same be stricken out; which objection was overruled by the court, to which ruling the defendant saved a bill of exceptions. In this, we think, the court erred.
For the reasons given, the judgment of the District Court is reversed and the cause remanded.
Reversed and remanded.