
    ACTON v. STATE.
    (No. 9492.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.)
    I.Automobiles <©=^351 — Information charging removal from motor vehicle of things specifically named in statute need not allege that it was necessary to use of motor vehicle; such allegation being necessary only when property taken is not specifically named in statute (Vernon’s Ann. Pen. Code 1916, art. 1259b).
    When information charges removal from motor vehicle of any of things specifically named in Vernon’s Ann. Pen. Code 1916, art. 1259b, pleading need not allege that such property was necessary to the use, control, etc., of automobile; such allegation being only necessary when property taken is some part of motor vehicle not specifically named in statute.
    2. Automobiles <§=3316 — Statute prohibiting removal of parts from motor vehicle held not in conflict or superseded by statute prohibiting tampering with parts (Vernon’s Ann. Pen. Code 1916, art. 1259b; Complete Tex. St. 1920, or Vernon’s Ann. Pen. Code Supp. 1918, art. I259bb)..
    Vernon’s Ann. Pen. Code 1916, art. 1259b, prohibiting removal from motor vehicles of specified property, is not in conflict with or superseded by complete Tex. St. 1920, or Vernon’s Ann. Pen. Code Supp. 1918, art. 1259bb, prohibiting willful breaking or tampering with parts of motor vehicles.
    3. Criminal law <§=359-8(2) — Refusal of continuance to secure absent witness for failure to show reasonable diligence in anticipating testimony of witness sought to be rebutted held not an abuse of discretion (Vernon’s Ann. Pen. Code 1916, art. 1259b; Vernon’s Ann. Code Cr. Proc. 1916, art. 610).
    In prosecution under Vernon’s Ann. Pen. Code 1916, art. 1259b, for removing parts from a motor vehicle, refusal of continuance to rebut alleged surprise testimony of officer as to seeing automobile coil in bottom of car without showing that effort was made to ascertain officer’s testimony before trial, or that defendant was misled by state, held not abuse of discretion under Vernon’s Ann. Code Cr. Proc. 1916, art. 616, requiring showing of reasonable diligence to anticipate testimony.
    4. Criminal law <§=>598(2).
    Testimony of witness, present at trial but not put on stand or interviewed by defense, cannot be claimed as newly discovered testimony.
    5. Criminal law ®=598(2).
    Reasonable diligence under Vernon’s Code Cr. Proc. art- 616, providing for continuance' for surprise would seem to require investigation by defense of all witnesses present, for purpose of ascertaining what their testimony would be.
    6. Criminal law <§=>9-36(4) — New trial for surprise can be obtained only where alleged newly discovered evidence was withheld from accused by fraud or misrepresentation.
    When defendant has exercised reasonable diligence by ascertaining testimony of witnesses present, it is only by showing that there has been some fraud or misrepresentation withholding knowledge of alleged newly discovered evidence that defendant can obtain new trial on ground of surprise.
    <§=3Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Tarrant County Court, at Law; P. W. Seward, Judge.
    ■Raymond Acton was convicted of removing parts from a motor vehicle, and he appeals.
    Affirmed.
    Frank R. Graves, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the -State.
   LATTIMORE, J.

Conviction in the county-court at law of Tarrant county for removing parts from a motor vehicle; punishment fixed at six months in the county jail.

Appellant was convicted of removing a coil, with intent to steal same, from an automobile belonging to George Jewell. He moved to quash the information on the ground that same charged no offense, and for the further reason that the act of the Legislature of 1913 under which this complaint was filed, which is article 1259b, Vernon’s 1916 P. C., had been superseded by the law passed by the 1917 Legislature, which is article 1259bb, Vernon’s Complete Texas Statutes 1920, or Vernon’s Ann. Pen. Code Supp. 1918. We are not in accord with either contention. Article 1259b, supra, penalizes one who, “with intent to steal,” etc., “removes from any motor vehicle * * * any * * * coil' * * * or any other part or parts attached to said motor vehicle which are necessary in the use, control, repair or operation thereof.” The attack on this information, on the ground that it does not allege any offense, is based on the proposition that it was necessary to charge that the coil referred to was attached to the car and was necessary to the use, control, etc., thereof. Examination further of said article reveals the fact that, in its enumeration by name of those parts which may not be removed from the car, appear “robe, * * * basket, trunk,” etc. After the specific naming of those things which may not be taken from the vehicle, the statute further goes on to say:

“Or any device, emblem or monogram thereon or any attachment, fastenings or other appurtenances, or any other part or parts attached to said motor vehicle which are necessary in the use, control, repair or operation thereof.”

Clearly a robe, a basket, a box, a trunk, a monogram, etc., which are specifically named, are not necessary to the use, control, repair, or operation of the car. We must construe statutes, if possible,' so as to give effect to the language used by the law-makers. So doing, we hold that, when the charge is the removal from a motor vehicle of any of those things specifically named in the statute, the pleading need not allege that such property was necessary to the use, control, etc., and we further are of opinion that such allegation is only necessary when the property taken is some part of a motor vehicle not so specifically named in the statute.

Nor do we believe article 1259b and article 1259bb to be necessarily in such con-nict as that the one last enacted supersedes the other, so as to require us to hold that both cannot stand. One of said statutes forbids the removal from the motor vehicle of certain specified property, or of parts necessary, etc.; the other statute forbids the willful breaking, injury, or tampering with the parts of a motor vehicle. It being manifest that parts of a car may be broken, injured, and tampered with without being removed, we perceive no necessary conflict in the two articles. Cooper v. State, 8 S. W. 654, 25 Tex. App. 532.

Appellant’s application for continuance, made-during the trial on the ground of surprise, does not seem meritorious. The matter alleged to be that of surprise was at the testimony of the policeman who arrested appellant on this charge; he testifying for the state in its rebuttal that, after he arrested appellant, he saw the car of the latter, and the coil box was open, and one of the coils was out of the box and lying in the bottom of the car, the other coils being in the box. Appellant’s motion for continuance sought to get the testimony of his brother, who was absent and ill, but who would testify that he drove to town the morning of the alleged taking in appellant’s ear, and that it was in good condition, and that after appellant’s arrest he drove the car away from where appellant left it parked, and that all four coils were in the box, etc.

Article 616, Vernon’s C. C. P., provides for a continuance after the trial has commenced, when it appears to the satisfaction of the court that, by some unexpected occurrence since the trial commenced, %oMclb no reasonable diligence could home anticipated, the applicant was so taken by surprise that a fair trial could not be had. It has been often held that the accused cannot claim as newly discovered testimony, the testimony of a witness who was present at the trial but not put on the stand nor interviewed by the defense. The reason for this is apparent. Reasonable diligence would seem to require that investigation be made by the defense.of all witnesses present for the purpose of ascertaining what their testimony would be. When this is done, it is only upon a showing that there has been some fraud practiced or misrepresentation by which knowledge of the testimony claimed to be newly discovered was withheld from the accused, that he can obtain any advantage or maintain his claim for a new trial so sought. In the ease before us, it is not shown that any effort was made to ascertain from the officer what his testimony would be, before the trial was begun, nor is it set up that the state or its witnesses in anywise misled appellant or his counsel, or withheld from them any information as to what the state’s testimony would be on the trial. Many authorities are cited under article 616, Vernon’s C. O. P., and on page 195 of Mr. Branch’s Annotated P. C., justifying us in the statement that the facts in this case are not such as to excuse appellant nor to make it appear that the trial court abused his discretion in holding that it is not shown that reasonable diligence could not have anticipated before the trial began', the occurrence here claimed as a surprise.

Being unable to agree with appellant’s .contentions, and finding no error in the record, the judgment will be affirmed.  