When the proposed testimony of the absent witness, Hodge, for whom a continuance is sought, is considered in connection with the testimony adduced at the trial, we are of opinion the court erred in overruling the motion for a new trial.
Upon the theory of the prosecution, the chief inculpatory facts are derived from the testimony of the State’s witness Moody. *710With regard specially to his- testimony, defendant asked the court to instruct the jury as follows: “If you find that M. A. Tucker drove up the yearling .in question, and that defendant, after it was brought to his lot, opened the gate, and had nothing to do with the original taking and driving, you will acquit; and this is so no matter what connection defendant had with it thereafter.” This sixth requested instruction was directly pertinent and applicable to the facts proven, and presented the law ■ in a concise and pointed manner to the vital issue in the case, and though, in a general way, the principle involved may be said to be covered by the general charge, still, it was nowhere presented as concisely and sharply, and we are of the opinion it was error to refuse to give said instruction in charge.
Opinion delivered June 26, 1886.Many other errors are complained of, few, if any, of which, áre likely to arise upon another trial, and therefore will not be discussed. For the two above pointed out, the judgment is reversed and the cause remanded for another trial.
Reversed and remanded.