Speer v. State , 26 Tex. Ct. App. 173 ( 1888 )

White, Presiding Judge.

On the trial below, both these appellants were convicted of the theft of a certain horse, the property of George Wright and Frank Harmison.

Confession of error is made by the Assistant Attorney General as to the ruling of the court in overruling defendant’s application for a continuance. As set forth in said application, the most material testimony sought was that of the witnesses Quin and Walker, and, considered in the light of the testimony adduced on the trial, this testimony is not only material but probably triie.

Since this appeal has been taken from the judgment of conviction, it has transpired that the animal which was alleged to have been stolen by these defendants, and for which they have been convicted, was not stolen, in fact, but has been since found, and that the defendants are innocent of the charye. It is a clear case of mistaken identity of the animal charged to have been stolen. This is made to appear by the affidavits of the proseecuting witnesses, George Wright and Frank Harmison, the alleged owners of the stolen animal, the affidavit of the sheriff of Young county, and the certificate of the Hon. P. M. Stine, the judge presiding at the trial, who expresses a desire that the judgment of conviction should be set aside. These original affidavits and said certificate have been filed in this court since the transcript was sent up. And, whilst they are matters which can not be legitimately considered by us on the appeal, we refer to them as a simple act of justice to these appellants. (Roy v. The State, 24 Texas Ct. App., 369.)

Because the court erred in overruling the application for continuance, the judgment is reversed and the cause remanded.

Reversed and remanded.