H. C. Walters v. The State, 17 Tex. Ct. App. 226

White, Presiding Judge. One of the principal inculpatory facts against defendant relied on by the State was that defendant, prior to the time he committed the offense charged, had engaged a room at the boarding house, and that, after obtaining the twenty-dollar bill, he left and went off to a distant place, where he was found, arrested and brought back. In other words, a flight was proven as evidence of his criminality.

It appears that after his arrest an examining trial was had before a justice, and on that trial two of defendant’s witnesses gave a satisfactory account of the reasons why defendant left on the day and just after the money is claimed to have been taken, and went with them to the place where he was subsequently arrested. When the defendant was bound over at this examining trial, he had these two witnesses recognized to appear and testify on the trial in the district court. When an indictment was preferred against him, and he ascertained that said witnesses were absent, he immediately sued out attachments for them.

When the case was called for trial in the district court, defendant asked first a postponement and then a continuance on account of the absence of the witnesses, setting up the diligence used as aforesaid, and showing the materiality of the testimony, and exhibiting in support of his application the testimony of the witnesses as taken at the examining trial. Attention of the court was again called to the materiality of this testimony on the motion for a new trial. All of defendant’s motions were overruled. We are of opinion the court erred.

If the State endeavored to show flight as an evidence of guilt, it was clearly defendant’s right to controvert this evidence, and his application for continuance showed merit in point of diligence as well as in the materiality and probability of the testimony. The judgment will necessarily have to be reversed on this ruling.

In reversing the case upon this ground it is perhaps well that we should consider another question earnestly insisted upon by appellant’s counsel as conclusive of the fact that in no event could defendant be found guilty of a felony under the evidence adduced in behalf of the prosecution, but that his offense, if any, was but a misdemeanor, the amount stolen, if any, by him being less than §20. As shown by the testimony, defendant proposed to give the prosecuting witness change for a twenty-dollar currency bill.

She, the witness, handed the defendant the twenty-dollar bill, and when he pretended he did not have a sufficiency of change he handed her back, instead of the twenty, a one-dollar bill. It is insisted that if he. stole any money at all, he only stole $10, because he gave her back §1. The argument is specious, but not sound. He is charged with stealing the twenty-dollar bill; the evidence shows he got the twenty-dollar bill.

The owner evidently never intended to part with the twenty-dollar bill; for the only condition upon which she agreed to part with the possession and title was that he would give her $20 in change. This condition was not complied with, and his taking the twenty-dollar bill was fraudulent, even though he gave her the one-dollar bill in return. His object was to get the twenty-dollar bill — not $19 — and, in order to do that, he had to give her §1. The twenty-dollar bill was what she lost and what he took.

That is the charge in the indictment, and if he is guilty of any offense, it is the theft of the twenty-dollar bill. Because the court erred in overruling defendant’s application for a continuance, the judgment is reversed and the cause remanded. Reversed and remanded. [Opinion delivered November 26, 1884.]