¶1Defendant’s first application for a continuance, grounded upon the absence of witnesses whose testimony is alleged to be material to his defense, shows that he used legal and sufficient- diligence to obtain said testimony. The application, in other respects, complies fully with the requirements of the law. There can be no question but that the absent testimony, as it is set forth in the application, was material to the defendant, and the evidence adduced on the trial, does not render it improbable that it is true, but, on the contrary, tends to corroborate it. We think the court erred in not granting the defendant’s motion for a new trial, when it appeared from the evidence that the absent testimony was not only material tó the defendant, but was probably true.
¶2It was not error to overrule the exceptions to the indictment. It charges the offense of swindling in due form. That the facts set forth in the indictment may have constituted theft, does not vitiate the indictment. By the same act the defendant may have committed both theft and swindling, and the State had its election to prosecute him for either offense, but a conviction of one would bar a prosecution for the other.
¶3Defendant’s plea of former acquittal was bad upon its face. It should have been, but was not, excepted to for insufficiency. It presented no facts which could operate as a bar to this prosecution. It pleaded a judgment of acquittal of the charge of theft of cattle, while this prosecution is for an entirely different offense. Defendant may have been innocent of the theft of the cattle, and yet guilty of the crime of swindling Fort out of his horse. Or he may have been guilty of both offenses, because the two transactions were not the same.
¶4Because the court erred in not granting the defendant a new trial upon the ground that it was developed on the trial that a continuance should have been granted him, the judgment is reversed and the cause is remanded.
¶5Reversed and remanded.