
    H. A N Kolb v. The State.
    No. 6861.
    Decided December 13, 1922
    1. — Fraudulent Disposal of Mortgaged Property — Continuance—Diligence-Practice on Appeal.
    Although diligence in securing a process may be questionable, yet if the witness was in fact sick at the time of the trial no diligence however perfect would, have been able to have secured her attendance, and her testimony being material a new trial should have been granted.
    
      
      2. — Same—Mortgage—Written Instrument — Practice on Appeal.
    Where the prosecution is based on a written instrument and was referred to in the statement of facts as a recorded mortgage, but the statement of facts as it appears in the record did not show that a written mortgage or a copy was introduced in evidence the conviction cannot be sustained.
    Appeal from the Criminal District Court of Tarrant. Tried below before the Honorable George E. Hosey.
    Appeal from a conviction of a fraudulent disposal of mortgaged property; penalty, two years imprisonment in the penitentiary.
    The opinion states the case.
    No brief on file for appellant.
    
      R. G. Storey, Assistant Attorney General, and Jesse M. Brown, District Attorney, for the State.
   HAWKINS, Judge.

The instant prosecution proceeded under Article 1430 of our Penal Code denouncing the fraudulent sale or other fraudulent disposal of property upon which a written mortgage had been executed. Conviction followed with a penalty of two years in the penitentiary.

The State’s case shows that one Goodnature had sold to appellant an automobile for the sum of $425. To secure the payment of the purchase price appellant had executed a mortgage on said car; that the car was thereafter sold by appellant. It is contended by the State that the mortgage was a valid mortgage at the time the sale was made. It is the contention of appellant that when the note matured which was secured by the mortgage in question Goodnature agreed to accept a new note signed by appellant and his brother, and agreed at that time if the brother signed the new note as surety the mortgage would be cancelled; that a new note was given with thirty days additional time for payment; but Goodnature claimed that he did not agree to cancel the mortgage, but that the new note was executed as an extension of the old one. In this .state of the record we consider appellant’s application for a continuance.

The case had been set for trial at a day some weeks prior to the time it was actually tried, at which former setting the witness Mrs. Lillian Cornish had not been subpoenaed as a witness. On October 22, two days before the trial appellant did apply for process for this witness and sets up in his application that she would testify that she was present at the time Goodnature' and appellant were discussing the renewal note and the cancellation of the mortgage, and that prosecuring witness asked her (Mrs. Cornish) if she would sign the note as security, which she declined to do; that appellant’s brother agreed to sign it, which he did, and that prosecuting witness said the mortgage would be cancelled and the old note destroyed. Some question seems to have arisen as to whether this witness was subpoenaed. The applica tion states that the sheriff first returned the process into Court showing service on the witness but later changed it showing she had not been served. The process itself is not attached to the application, but there is attached to the application the certificate of a physician to the effect that Mrs. Cornish at the time of- the trial was ill and would be unable to leave her bed for two or three weeks. We gather from the record that witness was served by telephone and accepted service thereunder. If the witness would have testified as stated in the application there is no doubt but that it was upon a vital issue in the case, and if believed by the jury would have furnished a complete defense to the prosecution. .Although diligence in securing the process may be questionable, yet if the witness was in fact sick at the time of the trial, no diligence, however perfect, would have been able to have secured her attendance, and we have reached the conclusion that the court was in error in overruling the application for continuance, especially in view of the fact that at the time he passed upon the motion, for new trial the case had been developed and the importance of this witness’s testimony was apparent. We believe a new trial should have been granted in order that this testimony might have been secured.

The case must be reversed for another reason also. To lay a basis for a prosecution of this character the mortgage in question muát 'have been a written instrument. All through the statement of facts it is referred to as a written instrument and as having been filed for regis- ' tration in the office of the county clerk and the statement of facts shows that the State offered in evidence- the certified copy of the mortgage which had been recorded in the office of the county clerk of Tar-rant County, and there is left in the statement of facts a blank page which it was evidently the purpose of the attorney to fill in with a copy of the mortgage, but by an oversight the same was omitted therefrom. We must take the statement of facts as it appears in the record and we find, therein no mortgage. There is an assignment in appel-, lant’s motion for new trial that the evidence is insufficient to support the conviction. We must take the record before us, and without the written mortgage having been introduced in evidence the conviction can not stand. We regard it as analogous to prosecution for forgery where the alleged forged instrument is not introduced in evidence.

For the errors pointed out the judgment must be reversed and the cause remanded.,

Reversed and remanded.  