
    ARNOLD v. STATE.
    (No. 8389.)
    (Court of Criminal Appeals of Texas.
    March 12, 1924.
    Rehearing Withdrawn June 18, 1924.)
    Criminal law <§=3598(7) — Refusal to grant continuance to- procure testimony held error.
    Where state’s attorney and accused agreed that case would not be set for trial, and,,probably would not be tried at all, and in reliance thereon the accused did not subpcena witnesses, refusal of continuance to procure material testimony of witnesses out of the county was error.
    Appeal from Harris'County Court at Law; Murray B. Jones, Judge.
    Virgil E. Arnold was convicted of embezzlement, and he appeals.
    Reversed and remanded.
    W. L. Hill, Ered R. Switzer, and Pollard, Berry & Moore, all of Houston, for appellant.
    Tom Garrard, State’s Atty., ancl Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is embezzlement; punishment fixed at confinement in the county jail for a period of 10 days.

The indictment was filed June 26, 1923; the trial took place on August 9th. A motion, for continuance was made to procure material testimony of witnesses who were out of the county. The witnesses had- not been subpoenaed, for the reason that in coii-sultation -with the assistant district attorney, who had the case in charge, an agreement had been reached with appellant’s attorney to the effect that the case would not be set for trial; and probably not be tried at all, for the reason that there was an absence of criminal intent; the transaction being one which should be settled in a civil suit. Relying upon this agreement, about the making of which there is no controversy, the appellant refrained from causing the issuance of subpoenas for the witnesses mentioned in the application for a continuance. The state’s attorney concedes that the application should have been granted, and appends to his brief a letter .from the assistant criminal district attorney of Harris county to the same effect.

Prom our examination of the record, we concur in the view mentioned, and order that the judgment be reversed, and the cause remanded. 
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