
    Tony Murphy v. The State.
    CoBTiNTAtroE.—Not only must the application for a continuance show diligence in an effort to obtain testimony, but it must also show that the desired evidence is material to the defence.
    Appeal from the District Court of Hill. Tried below before the Hon. T. Smith, Special Judge.
    Ho brief for the appellant.
    
      
      Thomas Ball, Assistant Attorney-General, for the State.
   White, J.

The judgment appealed from in this case is one of conviction for theft of a mare, and assesses the punishment of appellant at twelve years’ confinement in the penitentiary.

The only question is as to the ruling of the court upon defendant’s application for a continuance. We do not think the court erred in overruling the motion, because the application showed want of proper diligence to secure the witnesses’ attendance; and, besides, it did not show that the evidence sought would be material to his defence. From an inspection of the affidavit, it will be seen that a former trial of the case had been had, and yet the attachment for two of the witnesses had issued to Limestone County on the fourteenth day of April, 1879,—just two days before the last trial. The motion does not show what became of the process for any of the witnesses, after it was issued.

As to the materiality of the testimony, the mere fact that the witnesses would prove that defendant was a hired hand at the time of the taking would not be material, unless it could also be shown that he was not chargeable with guilty knowledge, and did not knowingly assist in committing a theft. Taylor v. The State, 5 Texas Ct. App. 529.

There is no error, and the judgment is affirmed.

Affirmed.  