
    SHERWOOD v. STATE.
    (No. 5968.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1920.
    Rehearing Granted Dec. 8, 1920.)
    1. Criminal law &wkey;»!104(2) — Appeal will be dismissed for want of proper caption of transcript.
    Where the papers pertaining to the trial were not filed at a term of court shown to have been held as manifested by the caption of the transcript, the appeal will be dismissed.
    On Motion for Rehearing.
    2. Criminal law <&wkey;596(2) — Refusal of continuance for absence of witness to corroborate defendant’s wife’s testimony held error.
    In prosecution for automobile theft in which defendant claimed an alibi, refusal of first application for a continuance for absence of witness, who would have corroborated testimony of defendant’s wife that ■ defendant at time of the commission of the crime was not in the town in which the crime was committed, was error, notwithstanding cumulative nature of the testimony.
    3.Criminal law <&wkey;596(2) — Rule as to continuance for cumulative testimony not applicable where testimony corroborates wife, husband, or near relative.
    The rule that a continuance will not be granted for absence of witness whose testimony will be merely cumulative does not apply to the first application for a continuance or to testimony in corroboration of the husband or the wife or a near relative of the accused.
    ■ Appeal from District Court, Parker County; F. O. McKinsey, Judge.
    Bill Sherwood was convicted of automobile theft, and he appeals.
    Reversed and remanded.
    John L. Poulter and Mays & Mays, both of Ft. Worth, and Carter & Queen, of Weather-ford, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The caption of the transcript shows that the court convened on the 29th of September, 1919, and adjourned on the 21st day of November thereafter. The recognizance was entered into on the 24th day of April, 1920. Other papers pertaining to the trial seem to have been filed as if the court had been held in April. The caption does not so show. In order to be considered, all the proceedings had in the case upon which conviction was obtained must be filed during the term of court shown in the caption ; otherwise the trial was had at a term not authorized by law, and the papers do not bear such authentication as to show that the court as set out in the caption tried appellant during the term of court as held. We suppose that it was an error of the clerk in fixing the dates in the caption. That is simply a supposition. Because of want of a proper caption, this appeal cannot be entertained. There is nothing before the court to consider, because the papers were not filed at a term of court shown to have been held as manifested by the caption.

The appeal will therefore be dismissed.

On Motion for Rehearing.

On a previous day of the term the appeal herein was dismissed because of defect in the transcript in regard to the caption. This has been supplied. The conviction was for the theft of an automobile.

The state’s ease was mainly made by a witness named Line, who testified he bought the auto from appellant in Ft. Worth on the 22d of September, 1919; it had been previously stolen on the night of the 12th of August, 1919; that he had known appellant for quite a while; that appellant came to his father’s house where witness was visiting and sold him the auto; that he knew the auto was stolen; that appellant was to sell it to him under the name of Murley; and that the whole transaction was consummated on that basis.

There is no evidence showing that appellant was ever at Springtown, in Parker county, where the auto was stolen; but the witness Line lived there and owned a blacksmith shop. Some time after September 22, Line was found with the auto, and the owner had a conversation with him about it. The owner requested Line to tell him where he got the auto. This he declined, and the conversation became heated. He informed the owner, Mr. .Shown, that he had been talking a good deal and making trouble about this, and if he did not cease it he .would give him (Shown) serious trouble. Shown went away. Line sold the car. Shown sued for and recovered the car. Line testified as a witness in that case. Later Line was indicted for stealing the car and was sent to the penitentiary from Parker county. While in the penitentiary, his mother and sister worked assiduously for a pardon and succeeded in getting it, they say, through the assistance of some prominent officials. The pardon was obtained, it seems from the testimony, that he might be used as a witness against appellant for theft of the same auto. This witness testified both in the civil suit and in the prosecution of himself and swore deliberate falsehoods and misstatements. In other words, he committed perjury in both cases, and his testimony has been changed since he was pardoned. The mother and sister of Line were used as corroborating witnesses to Line’s testimony as to the identity of appellant as the seller of the auto to Line in Ft. Worth. No testimony was introduced to show appellant was in Parker county at or near the time when the auto was stolen, and it is to the effect that he was not in that county.

This much is said in order to discuss the refusal of the court to continue on account of the absence of witnesses by whom appellant expected to prove an alibi on the 22d of September to meet the state’s case that he made the trade. This testimony, if true, .would have placed him where it was not possible for him to have made the trade. He introduced some testimony, and especially through his wife, that on that particular day it was her birthday. She was then a young lady but has subsequently married appellant. It was her birthday and she and some friends prepared a lunch and went to Goat Island in Lake Worth, about 9 or 10 miles from Ft. Worth, and spent the day. There were several in the party. She is corroborated to some extent-by the jitney driver who carried them to the Jake, and by the owner of the steam launch who carried them from the landing out to Goat Island in the lake. Mrs. Beland was one of the party and was with them during the day. This .was an outing of pleasure and fishing and incidents of that sort incident to the excursion. Mrs. Beland would have testified it was the birthday of Miss Stine as she was then known, later appellant’s wife, and to all the facts and circumstances attending the outing. There was no question that it was the particular day relied upon by the state to show the transaction between Line and appellant in regard to the sale and purchase of the car. This was the first application for continuance. It is a well-settled rule that the first application is not subject to the rule of cumulative testimony. This rule, under the authorities, seems to apply also to subsequent applications where the witness was the wife of the accused or husband or a near relationship existed. This is predicated upon the idea that the jury might look unfavorably upon the testimony of the wife, which rule would not apply to witnesses who were in no way related or interested., But this was the first application, and Mrs. Be-land’s testimony would have shown that appellant was not in position to and did not make the trade testified by the accomplice. The state’s case depended upon the fact that Line bought the car from appellant on the 22d day of -September. If that fact was eliminated from the record or disbelieved by the jury, the state’s case would necessarily fall. We are of opinion that this application presented itself with much more cogency than usual by reason of the fact that the accomplice witness placed himself in the attitude of being the purchaser of what he knew to be stolen property, and assisted in fixing up a case in advance and of manufacturing testimony and then twice deliberately committed perjury in regard to the same matter. We are loath to believe that the jury would convict a man on the testimony of such witness, especially' if his testimony was controverted by disinterested .witnesses.

There are other matters suggested by bills of exception we have not thought necessary to discuss. One of them is with reference to testimony permitted to go to the jury with reference to an investigation by the grand jury as to the party from whom appellant may have received the car. He was acquitted of receiving the car and convicted of the theft. Theft was not alleged from an unknown owner, as did the count for receiving the stolen car. It charged the reception from some person unknown to the grand jury. That question will be eliminated, and the matters referred to will not again occur. There are other matters that will pass out of the case by reason of an acquittal of receiving, stolen property.

The judgment is reversed, and the cause remanded; 
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