
    (86 Tex. Cr. R. 465)
    TOREZ v. STATE.
    (No. 5632.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1920.)
    1. Cbiminal law <©=594(1) — Denial oe continuance EBEOE.
    Where indictment was returned September 3 and arrest made on September 4 and accused issued subpoena for witness on September 6, and trial began on September 8, court erred in refusing to grant a continuance, where service could not be had upon the witness'because temporarily absent from the county; the testimony of the witness being material.
    2. Cbiminal law <®=956(5) — Discrepancy BETWEEN TESTIMONY AND AFFIDAVIT OP ABSENT WITNESS NOT GROUND POE DENYING NEW TRIAL.
    On a motion for new' trial for error in refusing continuance for absent witness,, accused having claimed on trial that he purchased alleged stolen article from witness for the. state; a discrepancy between the affidavit of the absent witness, filed with the motion, and his testimony on the hearing of the motion, in that the affidavit stated that the witness for the state had told him that he sold the property to the accused, and the testimony was to the effect that the wife of the witness for the state had told him that the witness for the state had sold the property to accused, was a fact to be considered by the jury as bearing upon the credibility of his testimony, and did not authorize the trial judge to determine the issue of fact against the accused and deny the motion.
    Appeal from District Court, Midland County; Chas. Gibbs, Judge.
    Jesus Torez was convicted of burglary, and he appeals.
    Reversed and remanded.
    B. W. Baker, of Midland, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The conviction is for burglary. A piece of furniture, which was identified as having been taken from the burglarized premises, was found among the household effects of the appellant, which- were stored in a house rented by him in Midland. Midland was his place of residence, but at the time of his arrest he was engaged in work at a distant place, and had stored his effects pending his return. The state relied mainly upon the testimony of Estevanos Petes and his wife, Marie Petes, who testified to circumstances tending to connect the appellant with the offense. He relied almost exclusively upon his own testimony to establish his defense, which was the alleged innocent purchase of the property from the witness Petes. The premises of Petes were searched some time after the burglary, be being suspected, and neither he nor his wife at that time made any declaration inculpating appellant, who at that time resided in Midland, but some time subsequent to his departure his arrest and prosecution was brought about by information given by Petes. There was also evidence of bad feeling between Petes and appellant.

The indictment was returned on the 3d day of September, and the arrest was made on the 4th of the same month, appellant at the time being in Denton county. His trial began on the 8th day of September, and on the 6th of that month he obtained the issuance of a subpeena for a witness who resided in Midland county, which was on the 8th day of September returned not served, with the statement that the witness was out of the county. An application for a continuance was made showing that the appellant-had been diligent in his efforts to secure the attendance of the witness, and stating that he had learned that the witness was in Mitchell county temporarily, and that by him he expected to prove that the witness was a frequent visitor to the. appellant’s house while he resided in Midland, and that the article of furniture in question was openly-exposed to view, was allowed to remain on his premises unlocked, that no effort was made by appellant to conceal it, and that, while the appellant had had no opportunity in the short time since his arrest to talk to the witness, he believed he would testify, and expected to prove by him that the property was acquired from the witness Este-vanos Petes. This motion was overruled, and upon a motion for a new trial the affidavit of the witness was produced, in which the witness stated that he had gone from the town of Midland to the town of Colorado in 'Mitchell county on the 1st day of September, with no knowledge of appellant’s indictment, and returned on the 10th of the same month. The affidavit verified the allegation of appellant as to the open use of the property in his home; and in it it was stated that the appellant had bought the article of furniture in question from Estevan Petes. Therefrom we quote:

“I heard them talking about the fact both before and after it was paid for, and I heard Este-van Petes say, just after he sold the same to Torez, that he had sold it, and it, had been paid for.”

The motion was controverted, and the witness testified as follows:

“My name is Juan Ramaris. I know the defendant, Jesus Torez. I was subpoenaed as a witness in said cause. The sheriff did not tell me to come to Midland; I came here myself. I came to talk to Jesus and his lawyer. I made that affidavit (Mr. Garrard exhibiting document). X signed that with my mark. I know that Steve Petes sold the dresser to Jesus Torez. Steve Petes’ wife told me that Steve sold that dresser to Jesus Torez. I never talked to Steve about it myself, but Steve’s wife told me that Steve sold that dresser to Jesus.”

The application for continuance was good on its face. The diligence was ample, and the testimony material. The witness’ affidavit attached to the motion for a new trial fully verified the allegations in the motion. There is a discrepancy between his affidavit and his testimony, given at the hearing on the motion for a new trial, to the point that in one he claimed to have been told by Petes of the sale, and the other to have been told by the wife of Petes. This discrepancy, we think, does not justify the trial judge in overruling the motion for a new trial. In both the affidavit and the .testimony of the witness on the hearing of the motion he discloses important testimony, tending to corroborate the appellant in his testimony supporting his defense, and to contradict the witnesses for the state, not by way of impeachment merely, but by facts tending to establish the innocence of the appellant. The discrepancy mentioned would have been a fact to be considered by the jury as bearing upon the credibility of his testimony, but it does not authorize the trial judge to de-, termine without the intervention of a jury the issue of fact against the appellant. See Baines v. State, 42 Tex. Cr. R. 513, 61 S. W. 119, 312; Morgan v. State, 54 Tex. Cr. R. 545, 113 S. W. 934; Branch’s Annotated Penal Code, § 536, and cases listed; Cox v. State, 5 Tex. App. 118; Roquemore v. State, 54 Tex. Cr. R. 594. 114 S. W. 140; Branch’s Annotated Penal Code, § 335. The importance of the absent testimony is emphasized by the fact that it tended to corroborate the testimony of the appellant given upon the trial. See Koller v. State, 36 Tex. Cr. R. 499, 38 S. W. 44; Beard v. State, 55 Tex. Cr. R. 154, 115 S. W. 592, 131 Am. St. Rep. 806; Branch’s Annotated Penal Code, § 329.

Upon the record presented we are of the opinion that a new trial should have been awarded.

The judgment is reversed, and the cause remanded. 
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