
    KEITH v. STATE.
    (No. 7947.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    1. Criminal law <&wkey;956(3) — Truthfulness of proposed witness not to be combated by affidavit of sheriff.
    The truthfulness of a witness’ proposed testimony, as disclosed in an affidavit in support of a continuance, on ground of illness of witness, cannot be combated by the affidavit of a sheriff on motion for new trial based on refusal of the continuance.
    2. Criminal law &wkey;>956(5) — Trial court’s conclusion that verdict would have been same if proposed testimony of absent witness had been given held error.
    On motion for new trial, based in part upon refusal of continuance on account of absence of witness, trial court’s conclusion that testimony of the witness, if presented would in all probability not produce a different result, held, error, where such testimony appeared to be of unquestioned materiality as corroborating accused, and as aiding him in establishing his. alibi.
    3. Criminal law <i&wkey;742(2)( — Facts held to make it a jury question whether witness was accomplice.
    Connection of witness with goods in sliding their removal after the alleged burglary held such as to require the court to submit the question to the jury as to whether he was an accomplice of accused.
    Appeal from District Court, Franklin County; R. T. Wilkinson, Judge.
    Paul Keith was convicted of burglary, and b,e appeals.
    Reversed and remanded.
    Maurice Wilkinson, of Mt. Vernon, and J. A. Cook, J. F. Wilkinson, and J. A. Ward, all of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Franklin county of burglary, and given two years in the penitentiary.

The burglary was committed on Saturday night in a town distant from Mt. Pleasant, Tex., where appellant lived. The defense was an alibi. Appellant introduced three' young men, who testified that he with them constituted a quartet of singers, and that they were preparing for an entertainment to be given the latter part of November, 1922, and that they were practicing every Tuesday, Thursday, and Saturday nights, these being their regular nights for practice. They usually started their practice about. 7:30 or 8 o’clock and practiced on Saturday nights frequently as late as 11 o’clock. When the case was called for trial, appellant presented an application for continuance on account of the absence of Mrs. Sallie Hill, his landlady, who lived at Mt. Pleasant, Tex. By said witness he expected to prove that on the night of the alleged burglary at about 11 o’clock he came to his boarding place, and paid her his room rent, and went upstairs. The testimony of the accomplice witness to the effect that he, appellant, and another committed the alleged burglary, was that they left Mt. Pleasant in a car about 9:30 or 10:00 o’clock, and drove to the scene of the burglary in another town, and returned to Mt. Pleasant about 2:30 or 3 o’clock the next morning. The application for continuance was overruled. It would thus appear that the testimony of Mrs. Hill would be of unquestioned materiality as corroborating appellant and as aiding in the establishment of his alibi. Appellant testified himself upon the trial that he did not leave Mt. Pleasant on the night of the alleged burglary, did not accompany state witness, and took no part in the burglary whatever. Accompanying the motion for new trial, based in part upon the refusal of the continuance, appellant presented the affidavit of Mrs. Hill, in which she stated that he did in fact come to her house where he boarded in Mt. Pleasant on Saturday night of November 4th at 11 o’clock and paid to her his room rent, and went upstairs, and that if he had come down again she felt sure she would have known it. The state contested the motion for new trial. An affidavit of the sheriff was attached to the contest or offered in evidence, and was considered by the court. In the affidavit appears the statement that, if the defense had' procured an attachment, the sheriff would have gone to the residence of Mrs. Hill, and brought her to the courthouse; that he had seen her during the trial. Other facts were also stated. We neglected to say that the application for continuance on account of Mrs. Hill’s absence was accompanied by the certificate of a physician that she was recovering from an acute attack of appendicitis and that she was unable to attend court.

There seems no question of the diligence used to procure the testimony of Mrs. Hill. If the state believed her well enough to come to court they could have procured an attachment for her, and thus secured her presence. The truthfulness of her proposed testimony, which appears to be combated by the affidavit of the sheriff, is not held by us to be a matter which can be thus attacked. The law makes the jury the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. We have said in many cases that, where such affidavit accompanies the motion for new trial, the right of the judge to presume that the witness, if present, would not have testified as set out in the application, does not exist, and we regret our inability to agree with the conclusion of the learned trial judge as appears from his. qualification of the bill of exceptions that, if the testimony had been present, it would in all probability not have produced a different result. Questions similar to the one now under discussion have been passed upon in many recent cases. White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745.

There was an exception to the court’s charge on accomplice testimony. The charge substantially follows that in Campbell v. State, 57 Tex. Cr. R. 302, 123 S. W. 583, which has been frequently criticized by this court. See Walker v. State (Tex. Cr. App.) 252 S. W. 546; Abbott v. State (Tex. Cr. App.) 250 S. W. 188. We can add nothing to what we have said in these last-named opinions.

We are of opinion that the court should have submitted to the jury the question as to whether or not the witness Haydon Biddle was an accomplice. Biddle admitted that he thought certain goods were stolen. He assisted in the transportation of said goods, and was present when some of them were sold by one admittedly a participant in the burglary after being so transported by him. He seems to have aided and participated in the further removal of said goods. In our opinion his connection with the goods after the alleged burglary was such as to require the court to at least submit the question to the jury as to whether or not he was an accomplice.

The judgment will be reversed, and the cause remanded. 
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