Garrold v. State

White, P. J.

Garrold was indicted for the theft of horse property belonging to Jones & Carll, who had a sheep ranche on the Pendencia in Dimmitt county.

One Sprinkles was the only witness who connected the defendant in any manner with the theft by direct and positive testimony. This witness had first given evidence in the case on the examining trial, and the testimony so given had been reduced to writing. Taking this written testimony as a guide to what the witness Sprinkles would swear on the final trial, defendant applied for a continuance on account of the absence of certain witnesses for whom he had taken out process, with diligence, after his arrest, and by whom he proposed to prove an alibi covering the entire time as stated by the witness at the examining trial. This application was overruled.

On the trial, in addition to the fact that the defense contradicted Sprinkles’s evidence by the testimony he had given at the examining trial, in several material particulars, his trial-evidence lacks the impress of honesty and good faith, when we consider the fact, which he states, that Carll had employed him to get the horses after they were missing, and yet, after he had found them in defendant’s possession, he never disclosed the information to Carll or any one else until at the examining trial; and he states his reasons for testifying then to be that, after he himself was arrested, “Sergeant McKinney of the Bangers proposed to me to give testimony in this case and others, and told me if I would do so they would see me through, and I agreed to give the boys away if they would do it.”

■ Whether he was an accomplice or particeps criminis in legal parlance is immaterial in view of the attendant circumstances. His own evidence places him in such a questionable attitude as that we are not willing to sustain a conviction based solely upon his testimony, and without any evidence tending to corroborate it further than that of the witness Pane, who testified that he had seen defendant on the Pendencia several times before the horses were taken, and had not seen him after they were taken, until his arrest. In view of the evidence adduced on the trial, and considered in connection with the overruled application for a continuance, we are of opinion the court should have granted defendant’s motion for a new trial. (Code Crim. Proc. art. 560.)

The judgment is reversed and the cause remanded.

Reversed and remanded.