
    SULLIVAN v. STATE.
    (No. 10771.)
    Court of Criminal Appeals of Texas.
    April 6, 1927.
    1. Criminal law &wkey;>598(2) — Where defendant, accused of burglary, showed diligence in search for absent material witness, held error to refuse continuance.
    Where defendant, accused of burglary, made application for continuance because of absence of material witness, and showed that he had diligently attempted to locate such witness, held error to refuse continuance.
    2. Criminal,law <&wkey;9l3(3) — Where defendant, convicted of burglary, produced new witness whose attached affidavit tended to substantiate alibi, held error to refuse new trial.
    Where' defendant, convicted of burglary, made motion for new trial on ground' that witness who could not be located at time of first trial would testify to facts tending to substantiate alibi defense and attached affidavit of intended witness to same effect, held error to refuse new trial.
    3. Criminal law <&wkey;959 — Question of probable truth of absent witness’ affidavit attached to defendant’s motion for new trial is not for trial judge.
    Where absent witness makes affidavit that he would have sworn to facts set out in. application for continuance and such affidavit is attached to motion for new trial, probable truth of such testimony is not for the decision of the trial judge in deciding motion.
    4. Criminal law <&wkey;>l092(ll) — Protests to judge’s qualifications of bills of exception, made in form of affidavits, held not reviewable, where not certified by judge.
    Protests to judge’s qualifications of bills of exception, made in form of affidavits instead of exceptions to the qualifications of the bills, held not reviewable, where they were not certified to by the trial judge.
    Commissioners’ Decision.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Joe Sullivan, was convicted of burglary, and he appeals.
    Reversed and remanded.
    See, also, 100 Tex. Cr. R. 316, 273 S. W. 862.
    O’Neal & Harper, of Atlanta, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   ■BETHEA, J.

Appellant was convicted of the offense of burglary, and his punishment assessed at two years in the penitentiary.

The contention of the state was that the appellant, together with one Looney Adcock, in the nighttime, broke and entered into the storehouse of one E. H. Ball and took from said store about $500 worth of dry goods. The state relied for a conviction upon the testimony of the accomplice witness, Looney Adcock. . The appellant’s defense was an alibi.

In due time, appellant filed an application for continuance based upon the absence of the witness Tommie Jones, a material witness for the defense. Appellant caused to be issued on the 21st day of September, 1926, through his attorney, a subpoena for said witness, directed to the sheriff of Cass county, and placed the subpoena in the hands of the sheriff on the same day said subpoena was issued. 'Witness further alleged in said application for continuance that the appellant, by his own personal efforts, and through the efforts of friends, tried to locate said witness by going to his home and by instituting search for him during the period from the 27th day of September, 1926, up to the 11th day of October, the date on which the case was called for trial, but failed to locate him. It is further alleged that said witness resides in Cass county, and during all this period had been a citizen of said county.

The appellant, as shown by his application for continuance, expected to prove by the witness Jones that, on the night Ball’s store was burglarized, along about 12 o’clock at night, he (the witness Jones) found the gray horse of the appellant, with a saddle and bridle on, at or near the home of the father of the witness; that said horse was loose and not attended by any person; that he caught the horse and tied him to a tree at a point about 90 yards from his father’s house; that the horse was missing the next morning at 8 o’clock when he looked for him ; that the point where he saw the horse grazing and where he caught him was on or near a public road that leads from Marks Coombs’ residence to Ravana, where the appellant resided.

It was proved ip the trial that on the night of the alleged robbery and burglary of the store, while the appellant was on his way from his home to the residence of Ethel Sullivan, his sister-in-law, who was then sick, to carry her medicine, he reached the residence of Marks Coombs, and stopped there a short while, and while there his horse escaped from him, and he had to continue his journey on to Jais sister-in-law’s home on foot; that the horse was found on the road the same night.

The state proved by the witness Looney Ad-cock that on the night of the alleged burglary the appellant came to the home of John Davis, where John Davis, Joe Ogburn, and Bob Givens were; that the appellant was riding a gray horse; that the witness Adcock was preparing to return home when the appellant came up; that the ap'pellant and Adcock had a talk and decided they would go off on a little trip; that the appellant then took his horse and went on down the road and tied it to a tree. The witness Adcock testified that he was there when the appellant tied his horse; that the appellant got in the car with Adcock about 9 o’clock at night; that after the appellant tied his horse he got in the car with Adcock, and they went from there to Atlanta, and from Atlanta to Queen City, and then to Ball’s store in the town of Cass, where they robbed the store.

It seems to us that there is no question but that the testimony of the absent witness, Tommie Jones, was very material to offset the testimony of the accomplice witness, Ad-cock, and as an explanation of the finding of the gray horse tied to a tree near the home of the father of the absent witness, Jones. Said testimony was also very material as tending to establish appellant’s only defense, an alibi.

In our opinion diligence was shown, and the absent testimony was material, and was of such a character that the same might have produced a different result. The appellant filed a motion for a new trial, and to his motion attached the affidavits of the witness Tommie Jones, in which the witness stated that, if present, he would have testified to facts which appear almost identical with those contained in the application for continuance. This court has frequently held that, if the absent witness makes affidavit that he would have sworn to the facts set out in the application and said affidavit is attached to the motion for a new trial, the question of the probable trpth of such testimony is no longer one for the decision of the trial judge. White v. State, 90 Tex. Cr. R. 584, 236 S. W. 745.

We are of the opinion that the learned trial judge fell into error in refusing to grant appellant’s application for continuance and his motion for a new trial.

There are a number of other questions raised by bills of exception appearing in the record. The bills of exception referred to are qualified by the learned trial judge, and we also note in the record separate affidavits which appear to have been filed for the purpose of protesting against the qualification of the learned trial judge. Ordinarily, when a trial judge qualifies a bill of exception, and the appellant does not except to the qualification, the court will take the qualification, without referring to the record, as being correct. There are no exceptions to the qualifications of the bills of exception, but there appear in the record protests filed against the court’s qualification in the form of affidavits. We cannot consider these protests, for the reason that they are not certified to by the learned trial judge. As qualified, these bills present no error.

There appears an exception in the record complaining of the court’s refusal to give special charge No. 1, requested by the' appellant, on the question of accomplice. This special charge, requested and refused, was covered by the main charge, which we think fully apprised the jury'of what was necessary to be done in regard to an accomplice’s testimony.

In view of another trial, we will say that it is our opinion that the corroborating evidence in this case is very meager.

Bills of exception Nos. 5, 6, 7, 8, and 9, complain of the closing arguments of the district attorney. From an examination of these bills it appears that the district attorney in his arguments went beyond the record to say things that the court should not have permitted. However, the questions raised by these bills are not likely to occur again in another trial. For this reason we pretermit a further discussion of the same.

For the failure of the court to grant appellant’s application for eontinuancé and motion for a new trial, the judgment of the trial court is reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved'by the court. 
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