
    MATHASON v. STATE.
    (No. 6069.)
    (Court of Criminal Appeals of Texas.
    April 6, 1921.)
    1. Criminal law <®=»I095 — Motion to strike bill of exception denied on corrected record.
    The motion of the Attorney General to strike from the files defendant’s bills of exceptions, filed more than 90 days after the judgment, and which showed that the filing date had been corrected after the transcript was prepared for certification, will be denied where the corrected record showed that the time for filing the bills of exceptions had been duly extended, and that the bills were filed within such time, regardless of which filing date was correct.
    2. Criminal law <&wkey;9l7(2)— Court cannot deny new trial because of untruth of absent testimony, where witnesses make affidavits.
    The court cannot deny a new trial for error in overruling a continuance to procure the testimony of absent witness, where sufficient diligence was shown, because the court does not believe, in view of the testimony given at the trial, that the claimed testimony of the absent witnesses was true, where affidavits of those witnesses attached to the motion for new trial stated their testimony, since the court cannot substitute his decision as to the weight and truthfulness of the testimony for that of the jury.
    3. Witnesses <&wkey;246(l)— Court can inquire as to presence at offense- of persons for whose absence from trial continuance was asked.
    In a prosecution for theft, where defendant had sought a continuance to procure the attendance of absent witnesses, it was not error for the trial court to inquire of various witnesses at the trial whether the alleged absent witnesses were present at the time the offense was committed.
    4. Larceny &wkey;)40(6) — Proof of stealing diamonds set in rings does not vary from charge of stealing diamonds.
    There is no variance between allegations that defendant stole diamonds and proof that the diamonds taken by him were set in rings.
    5. Larceny &wkey;>78 — Evidence held not to require charge on voluntary return of stolen properly.
    In a prosecution for theft, where the evidence showed that defendant went behind the ¡ showcase in a store and took therefrom a tray containing diamond rings which he concealed beneath his coat, and that he was apprehended when he was on his knees trying to make his escape and the diamonds then taken from him, does not call for a charge on the voluntary return of stolen property.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Earl Mathason was convicted of theft, and he appeals.
    Reversed and remanded.
    Chandler & Pannil, of Stephenville, and Simpson & Moore. W. E. Myres, and W. B. Ammerman, all of Fort Worth, for appellant.
    Alvin M. Owsley, Asst Atty. Gen., for the State.
   LATTIMORE, J.

The decision of this case has been delayed by the failure of the cleric of the trial court to make out and forward to this court a correct transcript. - The record now before us shows that at the time of the overruling of appellant’s motion for a new trial the trial court made an order granting 90 days’ extension of time for the filing of the statement of facts and bills of exception. As said order was extended into the minutes by the clerk of the trial court, it appeared to be an order granting 90 days in which to file said records. When the transcript was filed in this court it nowhere showed any extension of the time for filing bills of exception, and said fact caused the Assistant Attorney General in this court to file a motion to strike out appellant’s bills of exception on the ground that same were filed too late; in answer to which appellant filed his motion for certiorari to perfect the record, and this court was compelled to grant said writ in order to have inserted in the transcript a correct copy of the order of the trial court granting said extension of time. This court has not been very strict with errors in making up records for the presentation of appeals here, but such errors occur so frequently that we will be compelled to make some very stringent rules regarding same if more care is not exercised. The transcript also shows that the date of the filing of the bills of exception in the court below has been changed with pen and ink from October 9th to October 7th, after said transcript was prepared for this court. An affidavit and letter of the clerk of the district court were forwarded to the Assistant Attorney General attempting to set up that he had been induced to make an erroneous file mark upon said bills of exception, and was attempting to correct same by said pen and ink change. We do not understand how a matter of this kind could occur if the file mark was put upon said bills of exception at the time they were originally presented to the clerk. We cannot permit changes in records after same are filed in this court upon ex parte affidavits, except in compliance with some law. We are at a loss to understand any. necessity for such change, since said bills of exception, whether filed October 9th or October 7th, would appear to be well within the 90 days’ time granted by the trial court, and the motion of the Assistant Attorney General in view of the present condition of the record will be overruled.

Appellant was convicted of theft of. certain diamonds and his punishment fixed at 5 years in the penitentiary.

When the case was called for trial appellant asked for a continuance to obtain the testimony of Bert Nicholson, Fred Williams, and Mrs. Basil Matthewson. The application for continuance appears in this record under the head of “Plea of Defendant,” and shows to have been made on June 15, 1920. The matter is complained of in appellant’s bill of exceptions No. 1, which shows that the trial term of the court below began on May 31, and that the indictment was returned against appellant on June 9, 1920, he being then confined in jail. Said application further states that on June 12th, and as soon as his case was set for trial appellant made-proper application for subpoenas for said witnesses, all of whom resided out of the county of the trial. The transcript is in such condition as to make it difficult for us to ascertain just the order of the events involved in the trial. The judgment of guilty shown on page- 8 thereof makes it appear that the cause was called for trial on June 11th, and that the verdict of guilty was rendered on that day, and, if this were true, appellant’s application was properly denied, because he made no application for subpoenas until the 12th. However, we conclude from a careful examination of other documents besides the judgment that the date of said judgment is erroneous.

The time allowed appellant in which to obtain out of county witnesses was not very great, and we believe sufficient diligence was shown. The subpoenas were issued on the 12th and made returnable on the 14th, and it appears from the returns of the officers on the process that none of said witnesses were served prior to the trial, and none of them appeared and testified. Appellant made a motion for a new trial based in part on the overruling of said application for continuance, and attached to said motion the affidavits of Bert Nicholson and Mrs. Basil Matthewson, each of whom swore to substantially the facts set up in the application as expected from them. These facts, if true, were of such nature as to have defeated the state’s case. The trial court attaches to said bill of exceptions No. 1 his qualification and statement to the effect that during the trial he made every effort to ascertain if the witnesses named in the application for continuance, or any of them, were shown to be present at the scene of, the alleged theft, and that he was satisfied from the testimony of the other witnesses that said witnesses Bert Nicholson and Fred Williams were not present, and that the witness Mrs. Matthew-son was connected with the alleged theft and assisting appellant in its commission, and that it was the opinion of the trial court that the application for continuance was made for delay, and that said witnesses if present would not testify as set out, and that their testimony would not probably be true. We are aware of the numerous decisions holding that under our statutes the trial court has large discretion in passing upon a motion for new trial based on the refusal of a continuance, and ordinarily we would uphold such action of the court below; but we are confronted by apparently an unbroken line of decisions of this court holding that, when the motion for a new trial is supported by the affidavits of the absent witnesses deposing to the facts stated in the application, the trial court is no longer the judge of the probable truth of said statements, and that to so hold would be to substitute the judge’s decision as to the weight and truthfulness of' the testimony for that of the jury. Long v. State, 39 Tex. Cr. R. 462, 46 S. W. 821, 73 Am. St. Rep. 954; Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312; Le Roy v. State, 43 Tex. Cr. R. 556, 67 S. W. 409; Freeman v. State, 75 S. W. 505; Lawhorn v. State. 46 Tex. Cr. R. 555, 81 S. W. 714; Long v. State, 48 Tex. Cr. R. 435, 88 S. W. 809; Sneed v. State, 100 S. W. 922; Thomas v. State, 51 Tex. Cr. R. 330, 101 S. W. 797; Morgan v. State, 54 Tex. Cr. R. 549, 113 S. W. 934; Davis v. State, 64 Tex. Cr. R. 8, 141 S. W. 264; McMillan v. State, 66 Tex. Cr. R. 288, 146 S. W. 1190; Rhea v. State, 67 Tex. Cr. R. 197, 148 S. W. 578; Valigura v. State, 68 Tex. Cr. R. 12, 150 S. W. 778; Baxter v. State, 68 Tex. Cr. R. 136, 150 S. W. 912. In view of these decisions, we are impelled to hold that the motion for new trial should have been granted because of the error in overruling said application for continuance.

We are not prepared to hold that the inquiries by the trial court of the various witnesses as to the presence of the persons named in the application for continuance, at the scene of the alleged theft, was erroneous. Nor do we think a variance appears in the allegations and proof because the property was described in the indictment as diamonds, and the proof showed that said diamonds .were set in rings.

Appellant asked a special charge on the voluntary return of recently stolen property, but we are not in accord with the proposition that there was any evidence calling for such charge. No eyewitness tés-titled for the appellant, and. while the testimony for the state does not go fully into the details of the occurrence, we gather from it that appellant had gone behind the showcase in the store of the owner of said diamonds and had taken from said showcase a tray containing eight diamond rings, and had concealed same beneath his coat and was crawling away from the showcase when the son of the proprietor discovered him on his knees trying to make his escape and took from him said diamonds. Under these facts there would appear to be nothing calling for a charge on the voluntary return of stolen property.

The argument of the district attorney was manifestly improper, but same will not likely occur on another trial, and we will not further discuss same than to remind the state’s attorneys, as we have often done, that it is not necessary in order to secure convictions of criminals whose guilt sufficiently appears from the evidence to go outside the record or indulge in personal denunciation of the accused in the course of the argument.

Eor the error in overruling the motion for continuance, the judgment of the trial court will be reversed, and the cause remanded. 
      <&wkey;>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     