12 Tex. Ct. App. 554 | Tex. App. | 1882
The defendant was convicted of the theft of a certain red heifer, the alleged property of Joseph Finger, and his punishment was assessed at confinement in the penitentiary for two years.
It appears from the evidence that in 1877 the red heifer in question, which was the property of Joseph Finger, was running with the cattle of one Rodriguez in Atascosa county. One Casimiro Fernandez, who was in the employ of Rodriguez as corporal, and who as such corporal had charge and control of the cattle and of the particular herd in which was this particular heifer, went, in company with defendant, to the herd, and Fernandez cut out this heifer from the herd, and defendant assisted him in driving her off, and she was seen no more. The heifer was in the mark and brand of Finger, but had always run with the cattle of Rodriguez, and when taken was about two years old. It was proved that the heifer was taken without the consent of Finger, the owner, and without the consent of Rodriguez, with whose cattle it ran. This is the whole case as made by the evidence in the record.
The defendant, when the case was called for trial, made application for a continuance of the cause, for the want of the testimony of one Pablo Olivari, by whom, he-
The truth of an application for a continuance, as well as the merit of the ground set forth therein, and its sufficiency, is addressed to the sound discretion of the court called to pass upon the same, and it is not granted as a matter of right, although it may meet all the requirements of the law. But it is provided that, should an application for a continuance be overruled, and the defendant convicted, if it appear upon the trial that the evidence of the witness named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted. (Code Crim. Proc. art. 560.)
In this case we are of opinion, 1, that the evidence is insufficient to sustain the verdict. 2. That the defendant’s application for continuance was a good and sufficient one. 3. That the evidence of the witness named in said application was of a material character, and that the
Other errors have been assigned by defendant’s counsel, but they are of a nature that renders our determination of them unnecessary.
The judgment of the court below is reversed and the cause remanded.
Reversed and remanded.