Eads v. State , 26 Tex. Ct. App. 69 ( 1888 )

Willson, Judge.

As to the absent witnesses Shook and Good, defendant’s application for a continuance was in all respects sufficient. It states that the defendant expected to prove by said two witnesses that, when he took possession of the alleged stolen cow, he claimed her as a cow that he had purchased from one Estick, This testimony is material. The only inculpatory evidence introduced by the State on the trial is the circumstance of the unexplained recent possession by the defendant of the alleged stolen property. The testimony of said two absent witnesses explains his possession of the animal, and it was very important for him to have such explanation before the jury. That he made such explanation to said witnesses is probably true; at least there is nothing in the evidence adduced on the trial to the contrary, and the application as to said two witnesses was not controverted by the State. Whether or not said explanation was true was a question exclusively for the jury to determine from the evidence in the case. Viewing said absent testimony with reference to the evidence adduced on the trial, we think the court erred in overruling the defendant’s motion for a new trial, and for this error the judgment will be' reversed and the cause remanded.

Opinion delivered June 29, 1888.

Several other questions deserving of notice are presented in the record, and have been argued by counsel for the defendant, but the case having been submitted at the close of the term, we have not sufficient time to investigate and determine them. Furthermore, on another trial, all of said questions may be avoided and eliminated from the case.

The judgment is reversed and the cause is remanded for , another trial.

Reversed and remanded.