¶1This conviction is for the theft of one-half cord of wood. The case was before this court at the Austin Term, 1887, and was reversed because the evidence showed that the wood was taken by mistake. Donahoe v. The State, 23 Texas Ct. App., 457.
¶2This judgment in the case is reversed (1) because a new trial should have been granted in order to procure the testimony of Sidney Estell. The Assistant Attorney-General contends that there is a want of diligence.
¶3Court met on the 22d day of October, 1888. The subpoena issued on the 16th of said month and was served on the 22d. The case was called for trial on the 24th. The witness lived ten miles from the court house. There was ample time for the witness to reach the place of trial, but if he had been served a month before he could not have attended because of sickness.
¶4Again, on the 22d of October appellant. had an attachment issued for said witness, which was not executed because Estell was sick. This appears from the officer’s return.
¶5But it is also contended that the facts sought to be established by Sidney Estell are not material. We think them quite material and of the greatest importance when considered in connection with the other facts.
¶6(2) The judgment must be reversed because the evidence fails to establish the fraudulent intent. On the contrary the animus furandi is, clearly disproved.
¶7The judgment is reversed and the cause remanded.
¶8Reversed and remanded.
¶9Judges all present and concurring.