
    MOORE v. STATE.
    (No. 6178.)
    (Court of Criminal Appeals of Texas.
    March 30, 1921.)
    1. Criminal law &wkey;598(7) — Defendant asking continuance to secure witness held not diligent.
    Where defendant appellant was arrested and placed in jail in October, indicted in November, employed counsel December 4th, and the case was set for December 6th, and defendant was previously brought from jail and informed by the court that, if he would give the names of his witnesses to the clerk, process would be issued for them, which he failed to do, no diligence was shown warranting a continuance for not being able to secure a witness from another county.
    2. Criminal law <&wkey;>595(4) — On application for continuance to secure witness, testimony sought held immaterial.
    Where defendant, prosecuted for burglary, asked a continuance to secure a witness in another county to testify that he saw defendant at a place 80 or 90 miles distant from the burglarized house on the preceding night, the continuance was properly denied for immateriality of the testimony, since the defendant could easily have traveled that distance by train or other conveyance during the night.
    3. Criminal law &wkey;>597( I)— Denial of continuance held not abuse of discretion, inasmuch as testimony sought from absent witness was probably untrue.
    Where defendant, prosecuted for burglary, asked a continuance to 'procure a witness to testify to having seen him 80 or 90 miles distant from the burglarized house on the preceding night, it was not an abuse of discretion for the trial court to refuse a continuance, inasmuch as there was positive evidence of disinterested witnesses that defendant appellant was near the scene of the burglary on the morning of the day alleged, so that the court would have been justified in concluding the expectant testimony was probably untrue.
    4. Criminal law &wkey;>784(I)— Failure to submit the law of circumstantial evidence held error.
    Where the facts showing the burglary were proven only by circumstances, and the identity of the accused was also dependent upon the same character of testimony, largely relating to the color of his clothes, it was reversible error not to submit the law of circumstantial evidence.
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Albert Moore was convicted of burglary, and he appeals.
    Reversed and remanded.
    Greenwood & Short, of Seguin, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Guadalupe county of burglary, and his punishment fixed at two years’ confinement in the penitentiary.

Because of an absent witness appellant asked for a continuance. The record shows that he was arrested and placed in jail in October, and was indicted in November following, and the application states that he only employed counsel on December 4th following, and that his case was set for trial on December 6th. The witness desired lived in another county, and was not served with process. It is further shown that appellant had been brought from the jail and informed by the court that, if he would give the names of his witnesses to the clerk, process would be issued for them. This he failed. to do. No diligence was shown, and the application was properly overruled.

We are inclined to think that, inasmuch as it was stated that the witness was expected to testify that on the night preceding the burglary, which occurred about 8:30-a. m., appellant was in the town of Eagle Lake some 80 or 90 miles distant from the alleged burglarized house, the materiality of said testimony does not sufficiently appear. One can easily travel the distance named during a night, on a train or other conveyance, and it is not shown that the means of communication between Eagle Lake and the place where the burglary occurred was not by direct railroad communication.

Nor would we be justified in concluding that the trial court abused his discretion, inasmuch as positive evidence of disinterested witnesses showed that appellant was near the scene of the burglary on the morning of the day alleged, and the trial court would have been justified in any event in concluding that the expectant testimony was not probably true.

Appellant asked a special charge on circumstantial evidence. We believe this should have been given. Smiley v. State, 222 S. W. 1108. The case just mentioned is similar in many respects to the one under consideration. In the instant case prosecuting witness, Hoffmann, testified that he left his house empty and went out into his field, leaving the front door locked with a key on the inside, and the back door latched; that when he returned to the house a little later he entered a side gate and observed a corduroy coat with a sheepskin collar hanging on the front gate; that he entered the back door and heard some one walking in the front of the house, and heard some one run out of the front door; that he ran out of the house, and he states that he saw “this negro running away with the coat on his arm." This witness, however, further stated that he did not see the face of the man who was running away, and that he had on yellow clothes. Returning to Ms house and searching, the witness discovered that some $43 which he had in his pocketbook in the front room was missing. He again went out to where a Mexican was at work in a nearby field and asked this Mexican if he saw the man, and the Mexican pointed to where a man with a coat on his arm was running toward the railroad. Witness pursued the fleeing party, but stated that a long freight train intervened and that he lost him. He reported the affair to the officers in a little town four or five miles distant, and appellant was arrested on the street of said town that afternoon about 3 or 4 o’clock. When searched he had a few nickels and coppers, but no other money. Mr. Hoffmann, while stating that he could identify appellant, attempted to do so solely by the fact that he had on certain kind of clothes and the coat above mentioned. When arrested appellant had on a corduroy coat with a sheepskin collar, and Mr. Hoffmann identified this coat as being the one he saw hanging on his gate. He admitted that there might be other men wearing similar clothes, and it was not shown that such clothes were infrequent or not worn by other people in that vicinity. Another witness testified that he saw appellant on the morning of the burglary about half a mile from Mr. Hoffmann’s house going toward the town of Kingsbury, where appellant was arrested, but this witness located the time of seeing appellant at an earlier hour than that testified to by Mr. Hoffmann as the time of the burglary. Mr. Hoffmann’s house was estimated to be from 500 yards to a half mile from the railroad track. This witness also testified that when he saw appellant at the point indicated he was wearing brown clothes, but had on a coat similar to the one described and identified by the witness Hoffmann. The deputy sheriff who arrested appellant stated that he had on brown clothes and the coat in evidence at the time. It seems that appellant was a .stranger in the neighborhood.

The above is the substance of the testimony. No one saw appellant enter or leave the house in question, and his identification as being the man seen fleeing from the premises is -wholly the opinion of the witness Hoffmann as to the identity of clothing. The statement of Mr. Hoffmann given at the preliminary trial of appellant was introduced by the defense, and it appears therefrom that said witness there only stated that the man he saw fleeing from his house had on a coat similar to the one worn by appellant and had clothes similar to those worn by him. We are not to be understood as saying that the evidence would not be sufficient to support a conviction, but are of opinion that the facts showing burglary are proven only by circumstances, and that the identity of the accused is also dependent upon the same character of testimony, and that the law of circumstantial evidence should have been submitted.

For the error of the court in refusing the special charge mentioned, the judgment will be reversed, and the cause remanded. 
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