
    STUBBLEFIELD v. STATE.
    (No. 7158.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1922.
    On State’s Motion for Rehearing, May 30, 1923.)
    1. Criminal law &wkey;>209 — Complaint essential to prosecution Tor misdemeanor.
    Under Code Cr. Proc. art. 479, a prosecution for a misdemeanor cannot proceed without a complaint.
    On State’s Motion for Rehearing.
    2. Criminal law <&wkey;9l7(2) — Diligence held sufficient to require new trial for refusal to continue.
    A showing that defendant had twice had process issued for an absent witness, whose testimony would impeach a state’s witness, and support defendant’s testimony, but deputy sheriff had inadvertently .destroyed the subpmna, and witness, though not subpoenaed, intended to come, but sickness prevented her • from doing so, held sufficient to require a new trial for refusal to grant continuance.
    Appeal from Hopkins County Court; Homer L. Pharr, Judge.
    Ambrose Stubblefield was convicted of theft, and he appealed.
    Reversed and remanded.
    Dial, Melson, Davidson & Brim, of Sulphur Springs, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The offense is theft, a misdemeanor; punishment fixed at confinement in the county jail for a period of 30 days.

The prosecution is founded upon an information, but no complaint is found. The complaint is essential; it is jurisdictional. The prosecution cannot proceed without it. Code Cr. Proc., art. 479; Diltz v. State, 56 Tex. Cr. R. 127, 119 S. W. 92; Vernon’s Tex. Grim. Stat. val. 2, p. 236, note 3.

Tlie judgment of conviction is reversed, and the prosecution ordered dismissed.

On State’s Motion for Rehearing.

It appearing that proper complaint has been filed, the state’s motion for rehearing is granted, and the cause considered on its merits.

The stolen property was an axe belonging to Pink (McCullough, whose wagon broke down while he was in the woods. He left his axe in the wagon, and on his return several days later the axe was missing. It was later found in possession of the appellant. When taxed with the theft, appellant stated that he bought the axe from Jim McCormack. This was denied by Jim McCormack. Appellant was a boy and lived with his parents. The axe, when recovered, was at the woodpile of appellant’s father. It was not concealed in any way.

Appellant testified that he had purchased the axe for $5 from. Jim McCormack, without any knowledge of the fact that it had been stolen. There was impeaching testimony relating to both the state and the appellant’s witnesses. Among other things, a witness-testified to admissions upon the part of Mc-Cormack that the appellant had gotten tha axe from- him. This was contradicted.

An application for a continuance was made to secure the testimony of Willie Stubble?field. According to the averments, she would hav.e testified to facts which showed that Jim McCormack had admitted to her that he had sold the axe in question to the appellant. She had not been subpoenaed, but appellant had twice had process issued for her, and by mistake the deputy sheriff bad destroyed the. subpoena without the knowledge of the appellant. The witness, however, while on the way to the trial, was taken sick, and according to her affidavit, attached to the motion for new trial, would have been present, but for her sickness.

While the diligence was not perfect, under the peculiar facts it was deemed sufficient.' But for the inadvertent destruction of the subpoena the witness would have been subpoenaed, and if subpoenaed, she could not have been present, owing to her sickness. This was not controverted, and must he taken as true, especially in view of her affidavit attached to the motion for new trial. Branch’s Ann. Tex. P. C. § 336. While impeaching the witness McCormack, the absent testimony falls within the rule in Roller v. State, 36 Tex. Cr. R. 499, 38 S. W. 44, and in Stewart v. State, 52 Tex. Cr. R. 100, 105 S. W. 809, in that it supports appellant’s testimony explaining his possession of the axe, and contradicts that of the state’s witness who testified that appellant did not purchase the axe from him. Under the facts, we think the court was in error in refusing to grant the application for a continuance.

The state's motion for rehearing is granted, the judgment heretofore rendered is set aside, and' the cause is now reversed and remanded. 
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