The opinion
On Rehearing June 2, 1920.
DAVIDSON, Presiding Judge.
On a former day of the term the judgment herein was affirmed. One question in the ease was decided on the theory that the application for a postponement, as now claimed, was only an application for a continuance for'the term. In the light of the motion for rehearing and a more careful consideration of the record, we are of opinion that we were mistaken with reference to the full import of the application. While it is denominated an application for continuance, and evidently so treated by the trial court, yet there is a request made of the court if the continuance should be refused, that his absent counsel’s presence could be secured the following week. So this application may be considered as one in the alternative for a continuance or postponement on account of the absence of counsel. The showing made by the application is sufficient so far as the absence of counsel was concerned. He resided in Dallas county and was engaged in the trial of cases in that county at the time that this case was called for trial, and those cases were set at the same term in Dallas county that this case was called for trial in Wichita County. This was appellant’s only counsel and upon whom he relied. This case was tried on the 4th of December, 1919. The court did not adjourn until the 28th of the following February. A postponement of the case for the presence of counsel would not have operated as a continuance. The accused was not defended by any attorney during the trial. After his application was overruled he entered a plea of guilty. The suggestion is that this would not have
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occurred had his counsel been present and aided in the defense. The Constitution provides that the accused shall have the benefit of counsel if he desires. This is a valuable right and one that has been rather strictly enforced by the courts. We are of opinion, therefore, that we were in error in affirming the judgment from this view point; that appellant was entitled to a postponement that his counsel might be present and represent him.
It was noticed in the former opinion there were two bills of exception in the record which were not approved by the judge. It is made to appear by certificate of the clerk accompanying this motion for rehearing that both bills were approved by the judge subsequent to the making out of the transcript, and the record of the office of the district clerk so shows. As presented we are of opinion the bills should be considered. It is shown by the record that the court adjourned on the 28th of February. Two orders of exténsion of time, amounting to thirty days, were granted by the trial judge in which to prepare bills of exception. This extension would have expired about the 28th of March. The transcript was made out -and certified by the clerk of the trial court, on the 11th of March, and the file mark here shows it to have been filed in this court on the 13th of March, fifteen days prior to the expiration of the time allowed by the trial judge for the approving and filing of the bills. The clerk certifies that after he made out the transcript and forwarded it to this court the trial judge approved the two bills in question. Under the order of the trial judge the appellant had to the 28th of March in which to have approved and filed his bills of exception. The transcript should not have been made out until after the expiration of the thirty days. These bills of exception show important matters for the appellant, and we think show erroneous rulings of the trial court. These bills show that the1 parties were, arrested, three in number, connected with the alleged theft, and that they made statements amounting to confessions to the officers, and among others was the confession made by appellant. He was unwarned, under arrest, and the confession was not in writing. It also shows the confessions of two of appellant’s associates separately made were in separate rooms in the jail from each other. Their testimony was not admissible.
There is another matter that might be mentioned which was discussed in the original opinion. It is this: The court did not limit the testimony with reference to an extraneous crime. Appellant wras charged with the theft of an auto. During the same evening or night appellant and his associates were arrested for the theft of some “joints.” This testimony was introduced and the court failed to limit it. There was an exception taken to the charge in the trial court before it was read to the jury. Upon another trial we are of opinion this testimony should be appropriately limited in the charge of the court. It had an important bearing upon the case. The contention is made that in taking the car the parties did not intend to appropriate
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it but only to use it for the purpose of conveying the joints when taken, and appellant undertook to segregate himself even from the taking of the car. These matters rather emphasize the first proposition, that is, that appellant ought to have had an opportunity for his counsel to be present and assist in the trial of the ease.
For the reasons indicated the motion for rehearing is granted, the affirmance is set aside, and the judgment now reversed and the cause remanded.
Reversed and remanded.