¶1This conviction was for the theft of three colts, the property of one John McKenzie. The indictment was filed on the fourteenth day of March, 1882. The cause was reached and defendant required to announce on the seventeenth of the same month. He moved for a continuance to procure the testimony of a witness who resided in Live Oak county, but who had gone, prior to the presentation of the indictment, and was then temporarily in the county of Presidio. “No process issued, because it could not reach the witness in time for this trial
¶2*135. Were the above facts sufficient to excuse the failure to issue process? We are of the opinion that they were. The law does not require a party to endeavor to accomplish that which is physically impossible.
¶3Were the facts expected to be proven material and probably true? By reference to the statement of facts it will be found that there is but little if any conflict between the evidence of the absent witness and that introduced by the State; and it will most clearly appear that the facts alleged in the motion are material and of the first importance. We are of the opinion that the court erred in overruling defendant’s motion for a new trial, based upon his motion for a continuance, especially as it was the first application.
¶4Does the evidence support the verdict? We have given the statement of facts our most careful consideration, and from it have reached the conclusion that the important and necessary facts, and those without which, under the circumstances of this case, no legal conviction could be had, are in harmony with the facts sworn to by the witness for defendant, and that, viewed as a whole, the innocence of defendant is made to harmonize, consist, or stand with each and every important fact in the record. It is true that there are some trivial circumstances, incapable of producing an effect greater than suspicion, which are in conflict with and are not reconciled by the evidence for the defendant. Bare indeed would be the case which did not present this attitude or condition.
¶5Again, taking all of the evidence together and viewing it as the case submitted, the fraudulent intent, the animo furandi, does not appear. We are therefore of the opinion that the court below should have granted the motion for new trial
¶6(The Beporters will give the statement of facts.)
¶7The judgment is reversed and the cause remanded.
¶8Beversed and remanded.
¶9Opinion delivered May 2, 1883.