Goldsmith v. State

• Decision Date: 03 May 1893
• Citation: 22 S.W. 405
• Parties: GOLDSMITH v. STATE.
• Court: Texas Court of Criminal Appeals

22 S.W. 405

GOLDSMITH v. STATE.

Court of Criminal Appeals of Texas.

May 3, 1893.

Appeal from district court, Jack county; J. W. Patterson, Judge.

Oliver Goldsmith was convicted of burglary, and appeals. Affirmed.

W. E. Taylor, Sil Stark, and Jas. R. Robinson, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

1. Defendant's application for a continuance was properly overruled. If the absent witnesses would have testified, as set forth in the application, that the pipe found in the possession of one of the parties sought to be connected with the burglary was not in fact taken from the store burglarized, and that the shoes were taken from the horse mentioned shortly prior to the burglary, it is not probable that these isolated facts would have changed or affected the result reached by the verdict. If its materiality and probable truth be conceded, the testimony is too remote and insignificant to have affected the verdict, under the facts proved. It is well settled that it is not in every case where the alleged absent testimony is material, and probably true, that the ruling of the trial court, refusing a new trial, will be revised on appeal, when considered with reference to overruling the application for a continuance. "It is only in a case where, from the evidence adduced upon the trial, we would be impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such rulings, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted." Browning v. State, 26 Tex. App. 443, 9 S. W. Rep. 770; Covey v. State, 23 Tex. App. 388, 5 S. W. Rep 283; Massie v. State, 30 Tex. App. 64, 16 S. W. Rep. 770; Pruitt v. State, 30 Tex. App. 156, 16 S. W. Rep. 773. The evidence adduced on the trial is not only consistent with defendant's guilt, but it excludes every reasonable theory save that of his guilt, and the guilt of those associated with him in the crime.

2. The court did not err in permitting the prosecution to prove that the horse tracks trailed from the scene of the crime corresponded with those of the horse found at Goldsmith's. The evidence was competent and admissible. Thompson v. State, 19 Tex. App. 593; Clark v. State, 29 Tex. App. 437, 16 S. W. Rep. 171; McLain v. State, 30 Tex. App. 482, 17 S. W. Rep. 1092.

It is made ground for new trial, by amended motion, that the witness...