Ninnon v. State , 1885 Tex. Crim. App. LEXIS 47 ( 1885 )

Willsox, Judoe.

We are of the opinion that the court erred in refusing the defendant’s application for a continuance. Sufficient diligence to obtain the attendance of the absent witness was shown. That the facts expected to be proved by this absent witness are material cannot be questioned. True, this testimony would have been only cumulative of other evidence adduced on the trial, but still it was material and the defendant was entitled to have it, and we cannot say, in view of the other evidence in the case, that the facts expected to be proved by this witness were not probably true. (Miles v. The State, 14 Texas Ct. App., 436; Tyler v. The State, 13 Texas Ct. App., 205; Lawson v. The State, Id., 264.)

Ho exceptions were taken to the charge of the court, and there are no such errors apparent in the charge as would cause the conviction to be set aside in the absence of such exception. We think, however, the charge upon circumstantial evidence would be insudlcient had it been excepted to; and the facts of the case also demanded a charge upon the law of alibi.

There was no error, we think, in admitting proof of the recorded marks and brands of the alleged owners of the alleged stolen cattle. Records of marks and brands are not instruments of writing such as are contemplated by article 2257 of the Revised Statutes.

Because the court erred in refusing defendant’s application for continuance and motion for new trial, the judgment is reversed and the cause is remanded.

jReversed and remanded.

[Opinion delivered March 20, 1885.]