
    COOLEY v. STATE.
    (No. 4987.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.)
    1. Criminal Law <&wkey;1099(7) — Appeal — Statement op Pacts — Filins After. Adjournment.
    A statement of facts of the testimony of witnesses heard by the judge on defendant’s motion for new trial on the ground that continuance should have been granted on account of the absence of such witnesses, which statement was filed months after the adjournment of court, cannot be considered by the Court of Criminal Appeals.
    2. Criminal Law <&wkey;917 (2)' — Continuance-Absence of Witnesses.
    Whore defendant, charged with horse theft, , moved for continuance on account of the absence of witnesses to establish an alibi, and, on hearing of motion for new trial based on denial of” motion for continuance, the trial court heard three of such witnesses, who could not swear defendant was in their town on the particular date, the court’s action in denying motion for new trial would be held correct.
    3. Criminal Law <&wkey;1171(3) — Trial — Improper Argument.
    In a prosecution for horse theft, the district attorney’s remark in argument, “This alibi testimony is the-most unreliable testimony in the world, and is so known to be by all the lawyers and in all the books,” was not reversible _ error, though defendant relied on an alibi, which, as became apparent at hearing of motion for new trial, the testimony of his witnesses could not establish.
    Appeal from District Court, Bowie County ; H. F. O’Neal, Judge.
    Oil Cooley was convicted, of horse theft, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of horse theft, and assessed the lowest punishment.

The testimony was amply sufficient to show, and therefrom the jury were clearly authorized to find, that on the night of June 8, 1916, the horse of Jesse Cox was stolen off of his place. The next morning the horse was tracked from Cox’s place practically into Texarkana. The officers there were informed of the theft of the horse, and undertook to find it, and to locate and arrest the thief. A night or two later they were informed by some horse traders where the horse could likely be found. They thereupon went from Texarkana a few miles in the country, and found the horse tied near the road. No one was present with the horse at the time. Some of the officers then went past the horse and stationed themselves, the others went back toward where the horse was and passed it. In going back they saw appellant then on the horse going in the direction where the other officers had stopped. They tried to arrest him and catch the horse, but he ran, and ran into the officers stationed on the road. They tried to catch him and the horse, but he escaped from them, and ran back where the other officers were. They again tried to arrest him. Both sets of officers fired repeated shots for the purpose of arresting and making him stop, but he ran faster, and when the last officer fired at him he either fell or got off the horse, ran through a fence, and made his escape, at the time. They recovered the horse and restored it to the owner. Appellant went into Louisiana, and was finally traced down and arrested many, months after his said escape. He was positively identified by the officers who first attempted his arrest as stated. He is shown to have known said horse and been at his brother’s, who lived right near .where the owner lived, and saw it a short time before it was stolen. 1-Ie denied stealing the horse, and denied that he was the person the officers caught with the horse, attempted to arrest, and shot at, as stated. His claim was that he was in Paris, Lamar county, at the time the horse was stolen.

All the issues raised by the testimony were submitted by the court in an apt charge, to which no objection was made.

Appellant made a motion for a continuance on account of the absence of four witnesses who lived at Paris. He alleged that by them he expected to prove that he was at Paris when the horse was stolen. After his conviction he made a motion for a new trial because of the refusal of the court to grant the motion for a continuance, and attached thereto the affidavit of some of said Paris witnesses tending to show that they would swear that he was at Paris the night the horse was stolen. The state contested this motion. Three of these witnesses appeared and testified before the court when he heard the motion for new trial on this ground. One of the witnesses did not appear personally, but the state procured, filed, and introduced his affidavit, which was positively against appellant, and wa« the reverse in effect of what appellant alleged he would have testified to on trial. The judge in explanation of appellant’s bill on this subject states that he heard these witnesses testify when he heard said motion, and they would not swear that appellant was in Paris on June 8th; what they would swear was that some time during that month he was there, but they could not undertake to say when it was he was there. There is filed with ■ the statement of facts of the main trial a statement of facts of the testimony of these several witnesses so heard by the judge, but that statement of facts was not filed 'until months after the adjournment of the court, hence it cannot be considered. Taking the record as we find it, we must conclude that the court’s action in denying the motion for new trial on the ground as stated was correct, and' that the testimony of these witnesses heard by him clearly justified his so holding.

On the main trial of the case appellant in substance testified that he could prove by said witnesses at Paris, if he could procure their attendance, that he was at Paris the night the horse was stolen a day or two before. and several days continuously thereafter. ' He had his attorney to also in substance testify that appellant furnished him just a day before the trial began the names of these witnesses, and what they would testify, and his attempts to procure their attendance.

Appellant has some very meager bills to this remark made in argument by the district attorney, viz.:

“This alibi testimony is the most unreliable testimony in the world, and is so known to be by all the lawyers and in all the books.”

The state contends that these bills are too defective and incomplete to authorize their consideration by the court. And he claims they do not exclude the idea that the remark of the district attorney was in reply to appellant’s counsel argument. We will give one of the bills in full; after the style of the cause, the court and -term, it is:

“Be it remembered that on the trial of the above entitled and numbered cause the distinct attorney in his closing argument in referring to witnesses desired -by the defendant, but who were absent, and who would have given testimony tending to establish an alibi for the defendant, used the following language: ‘This alibi testimony is the most unreliable testimony in the world, and is so known to be by all the lawyers and in all the law books.’ To which remarks and language of the district attorney the defendant then and there objected, and, the objection being overruled, the defendant excepted, and here tenders his 'bill of exceptions No. 3, and asks that same be approved and filed as a part of the record of this cause.”

This is signed by the appellant’s attorney and approved by the judge. It is most reasonable to conclude from the testimony of appellant and his attorney about the absence of said Paris witnesses, and what he expected to prove by them, that appellant’s attorney in argument to the jury discussed said absent witnesses, and what he expected to prove by them, and that they would have given testimony tending to establish an alibi for him, and that it was in reply to this argument that the district attorney made the remark he did about the unreliability of alibi testimony. Whether the remark as to the unreliability of alibi testimony by the district attorney as a general proposition was true or not, It turned, out that in this instance the claimed testimony of appellant’s said absent witnesses clearly bore out said remark by the district attorney, for when they were produced and testified before the judge, as stated by him, they would not testify to a state of facts that would have’ established or tended to establish an alibi for appellant in this instance. But in all events said remark by the district attorney, complained of in appellant’s bill, would not justify this court to reverse this case. Appellant was assessed the lowest punishment.

The judgment is affirmed.  