John Langham v. The State, 26 Tex. Ct. App. 533

White, Presiding Judge. Appellant was tried and convicted upon an indictment for the theft of a colt, the property of some person to the grand jurors unknown. At the trial the evidence showed that the colt was the property of one Pursley.

There is no effort to show what, if any, diligence was used by the grand jury to discover the owner before finding and returning the bill of indictment. “It is a well settled rule that when the grand jury could have ascertained the name of the owner-of stolen property by the use of reasonable diligence, it is their-duty to do so, and failing in this duty, a new trial should be granted.” (Atkinson v. The State, 19 Texas Ct. App., 462, citing 18 Texas Ct. App., 456; 13 Texas Ct. App., 514; 6 Texas Ct.

App., 238.) Sell Pursley testified that he owned the colt; that it got away from the range and he told Dave Hankins to hunt and get it up for him; that Hankins did bring it back to his, witness’s, house ¡and that the colt is now at his place. Hankins testified that he told defendant Langham to take the colt up and keep it until he, witness, could come and get it; that he got the colt .from defendant and carried it to Sell Pursley’s. Unless both .Pursley and Hankins swore falsely, there is no question as to the identity of the animal.

Defendant may have lied or joked ..about his having “hooked” the animal; he proved a good character for honesty. Opinion delivered December 12, 1888. In the light of this evidence we do not think the conviction should be permitted to stand. In view of it we are clearly of ¡opinion the court should have granted a new trial for the newly discovered evidence. The judgment is reversed and the cause remanded. Reversed and remanded.