Three grounds are urged for a reversal of the judgment in this case, to wit: 1. The overruling of defendant’s application for continuance. 2. Failure of the proof of identity of defendant. 3. The overruling of defendant’s motion for a new trial, as to the ground of surprise at the testimony of the witness W. J. Duckett.
It was the purpose of the application for continuance to obtain the testimony of the three several witnesses named, to sustain the defense of alibi. From the testimony which was had at tlje trial we do not believe that defendant’s statements as to what he could prove by said witnesses are probably true, or that, if said witnesses should make the statements, that they would be probably true.
As to proof of identity of defendant, whilst it is true that the witnesses who testified to seeing him in possession of the stolen animals had never seen or known him before, still two or more of them swear most positively to his identity, and other witnesses, some of them his own, place him, on the day before the property was stolen, in the neighborhood of the place where the theft was committed. Ample proof is found in the record to support the finding of the jury as to his identity.
Defendant claims that he was taken by surprise at the testimony of the witness W. J. Duckett as to the time when he, the defendant, left the house of said witness; that at the examining trial said witness had testified that it was on Wednesday, the 29th day of April. When we recur to the evidence of this witness as shown in the statement of facts, we find he testified “ defendant came to my house on Saturday, between the third and fourth Sunday in April last. He staid there until the next Wednesday morning, when he left.” There is no conflict between this and his previous statement at the examining trial, as far as we can see.
' But, suppose defendant had been taken by surprise by the testimony, then his remedy is pointed out by the statute, and he should *168have availed of that, and not have waited to seek relief where it could not be obtained, on his motion for a new trial. He should have asked for a continuance or postponement to some future day of the term, to have obtained the evidence shown by the supporting affidavits to this ground of his motion for a new trial. (Code Crim. Proc., art. 568; Childs v. The State, 10 Texas Ct. App., 183; Cresswell v. The State, 14 Texas Ct. App., 1; Higginbotham v. The State, 3 Texas Ct. App., 447; Walker v. The State, 7 Texas Ct. App., 245; Webb v. The State, 9 Texas Ct. App., 490.)
[Opinion delivered January 16,1886.]Ho exception was taken and saved to the charge of the court. Upon the weight of circumstantial evidence it was erroneous, and the error would have necessitated a reversal had it been excepted to at the time. (Harrison v. The State, 8 Texas Ct. App., 183; Harrison v. The State, 9 Texas Ct. App., 183; Walker v. The State, 13 Texas Ct. App., 618.) Hot having been excepted to, and it not being manifest that the defendant was injured thereby, we do not feel called upon to reverse the judgment for this error alone. (Post v. The State, 10 Texas Ct. App., 580; Maddox v. The State, 12 Texas Ct. App., 429; Walker v. The State, 42 Texas, 373; White v. The State, 19 Texas Ct. App., 343.)
We are of opinion that the evidence is amply sufficient to support the verdict and judgment, and, there being no reversible error apparent of record, the judgment is affirmed.
Affirmed.