On the night of the fifteenth of May, 1883, two horses were stolen from E. L. Morris, in Bexar county. On the twenty-second day of May, 1883, these horses were sold to one Luna, in Bastrop county. One of the horses was sold to Luna by the defendant and the other by a Mexican named Gonzales, and they executed bills of sale, respectively, to Luna. Defendant was indicted and convicted for the theft of both horses. The indictment was returned into court October 17, 1883, and the trial was had on the twenty-fourth day of October, 1883.
Defendant made an application to continue the case, which was refused. This continuance was sought because of the absence of one Ramon Casas, alleged to be a material witness in behalf of defendant, and who resided in Bexar county, Texas. On the seventeenth day of October, 1883, the day on which the indictment was returned into court, the defendant applied for and obtained an attachment for this witness to Bexa-r county, which attachment was returned endorsed by the sheriff of Bexar county as follows: “Came to hand on the twentieth day of October, 1883, and not executed. The within named person is not to be found, as he is temporarily absent from the county. Might return at any time; and, as the writ is returnable instcmter, I cannot hold it over.”
In his application, defendant stated that he expected to prove by'this witness that he, defendant, purchased, in good faith, the *124horse he sold to Luna from one J. E. Smith, on the seventeenth day of May, 1883, two days after said horse was stolen, and five days before he sold the same to Luna; and that said Smith executed to defendant a bill of sale of the horse, which bill of sale said witness signed as a witness; and that said witness was present when defendant purchased the horse. In all respects the application complied with the requirements of the law, and accompanying it, and made a part of it, was a copy of a bill of sale from one J. E. Smith to the defendant, dated May 17, 1883, witnessed by Eamon Casas, and describing the horse sold by defendant to Luna, and which was one of the stolen horses.
Opinion delivered November 24, 1883.There can be no question but that the testimony of this witness was material to the defendant’s defense. Were the facts set forth in the application probably true? If so, it was error to refuse defendant’s motion for a new trial. (Code Crim. Proc., Art. 559.)
There is nothing in the evidence adduced on the trial which is inconsistent with, or which renders improbable, the claim of the defendant that he purchased the horse he sold to Luna from one Smith. It is not shown that he had possession of the other stolen horse, or was connected with the theft of it, any further than that he was in company with Gonzales, who claimed, also, to have bought it from another party. We can see no reason why it should be held that the facts set forth in the application for a continuance were not probably true. We think the court erred in refusing defendant’s motion for a new trial.
This being a case of purely circumstantial evidence, it was incumbent upon the court to instruct the jury upon that character of evidence, which the court failed to do.
The judgment is reversed and the cause is remanded.
Reversed and remanded.