Morris v. State, 19833.

• Decision Date: 26 October 1938
• Docket Number: No. 19833.,19833.
• Citation: 120 S.W.2d 592
• Parties: MORRIS v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W.2d 592

MORRIS v. STATE.

No. 19833.

Court of Criminal Appeals of Texas.

October 26, 1938.

Appeal from District Court, Baylor County; Isaac O. Newton, Judge.

J. C. (Blackie) Morris was convicted of theft of a cow, and he appeals.

Reversed and cause remanded.

J. Donnell Dickson, of Seymour, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was charged with the theft of one head of cattle, and upon a conviction was awarded a penalty of two years in the penitentiary.

Appellant complains in his bill of exceptions No. 1 of the court's refusal to grant to him a second continuance of this case because of the absence of certain witnesses who had been present at the prior term of the court when this case had been called for trial. This motion was overruled, and the cause went to trial without the presence of said witnesses. At the conclusion thereof, the district attorney filed a written statement in which he agreed that if certain of the witnesses were present they would testify as set out in appellant's motion, and that their testimony was true. This testimony thus agreed to did not relate to an alibi, but to another and different phase of the case. There was a further witness whose absence was a part of the basis for such motion, a Mrs. Effie Siddens, who was desired to be used to testify relative to an alibi, and to a contradiction of an admitted accomplice, and it appears that the district attorney refused to agree relative to her testimony, possibly under the doctrine that her testimony would have been but cumulative of that of other witnesses who had testified to such an alibi for appellant.

The doctrine relative to cumulative testimony not being sufficient to demand the granting of a motion for a continuance seems not to apply to alibi testimony, and that of itself should be no reason for its denial.

In Richardson v. State, 108 Tex.Cr.R. 218, 299 S.W. 897, we said [page 898]: "The fact that the evidence is cumulative where it is sought to establish an alibi is no reason for its exclusion. The greater the number of witnesses to the facts establishing an alibi, the stronger ordinarily would be the reliance upon, and conviction of, its truth. See Baimonte v. State, 101 Tex.Cr.R. 622, 276 S.W. 921, 41 A.L.R. 1527, and authorities cited."

Bill of exceptions No. 2 goes to the sufficiency of the evidence, and complains of the court's failure to peremptorily instruct the jury to bring in a verdict of acquittal because there was no corroboration of the confessed accomplice in the theft. The theft complained of was established by the testimony of Cecil Davis, who had been previously convicted of this same offense, and was serving a term in the State Prison therefor. This witness had been convicted and sentenced to four terms in the penitentiary prior to this conviction. This witness claimed that he, Aldie Thomas and appellant, on the night of April 1, 1937, met at appellant's house in Stamford, in Jones County, and planned to go into Baylor County and steal this cow. That the next night all three of them went to Baylor County in appellant's car, and did steal this cow, and all three brought her to appellant's home and put her in the lot there. That witness was to receive one-fourth of the proceeds from the cow's sale, but never did receive it.

Appellant denies any connection with the theft, but does state that on the morning of April 2nd he was at Grandpa Bruce's house, and Aldie...