This appeal is from a judgment of conviction for arson, with the punishment assessed at imprisonment of each defendant in the State penitentiary for six years. The charging portion of the indictment is as follows: “That, about the fifteenth day of July, A. D. 1880, in Milam county, Texas, Hemy Bullock and James Bullock did unlawfully burn a certain gin-house, the property of J. W. McCown; against,” etc.

There were some four bills of exception reserved by the defendants’ counsel as to the rulings of the court upon the trial below, and eight assignments of error are set out in the transcript of the record. After a careful examination of the record of the whole case as made by the record, we conclude that the several errors complained of are either not well taken, or are not of sufficient importance to require a reversal of the judgment under the testimony, or that the errors complained of will be self-correcting on another trial, except as hereinafter specially noticed.

It appears by the record that, some time previous to the trial, there had been some sort of preliminary trial or inquiry before a justice of the peace of the county, involving the question of the guilt of one of these appellants as to some character of burning of the property of *47the alleged owner of the gin-house, as charged in the indictment against these defendants; that the justice of the peace had reduced to writing the testimony of the witnesses examined before him, and had placed his record of the examination had before him in the safe of a neighbor for preservation; that at the time of the trial the owner of the safe in which the papers had been placed by the justice, was temporarily absent, but a clerk in the house had access to the safe; that search had been made for the record and papers deposited by the justice, and they could not be found. Under these circumstances the prosecution was permitted to prove by paroi the character of the inquiry as to the character of property charged to have been burned, and what the witnesses had sworn on the examination of the case had before the justice of the peace.

After the trial and conviction of the defendants, and after they had moved for a new trial, and after the motion for a new trial had been made and overruled, and the defendants had given notice of appeal, the defendants filed a supplemental motion for a new trial, which the court at first overruled, apparently on the ground that the trial had been concluded and that by the notice of appeal the court had lost its jurisdiction over the case. The defendants then withdrew their notice of appeal, and afterwards the supplemental motion for a new trial was overruled upon its merits, unqualifiedly. It further appears by the record that it became an important question on the trial whether the examination had before the justice related to the burning of the gin-house mentioned in the indictment, or to some other burning, and that the witnesses were not agreed as to whether it was the one or the other. It is further shown that it was attempted to be shown by the defendant that some of the State’s witnesses are untruthful and unreliable witnesses, and on this question various witnesses testified both in favor of and against the credibility of the State’s witnesses.

*48The motion for a new trial was filed on November 19, 1881. The supplemented motion was filed November 21, 1881. The district attorney demurred to the defendants’ supplemented motion for a new trial, stating several grounds of exception, and among them that the defendants had previously moved for a new trial, which motion had been overruled and the defendants had given notice of appeal. 2. That the defendants had already had the benefit of the testimony set up in the supplemental motion, and the testimony would only be cumulative and in the nature- of impeaching testimony, etc. The demurrer of the district attorney was filed on November 23, and on the same day the defendants, upon an intimation from the court that it had lost jurisdiction of this case because of their having given notice of appeal, asked permission of the court to withdraw their notice of appeal. This application was refused by the court. The judgment entry in this respect is as follows: “ This day came on to be heard the motion of defendants for leave to - withdraw the notice of appeal heretofore given by them and entered of record in this cause, in order that they may present a supplemental motion for a new trial; and said motion, being considered by the court, is overruled because the court has no power to grant such motion on the conditions asked, and because the defendants, having already appealed from the judgment rendered against them after their motion for a new trial had been heard and overruled, this court has no power to make further orders in this case; to which ruling of the court the defendants except.”

The record further discloses that the defendants made a further application, filed November 27, for leave to withdraw their notice of appeal; whereupon it seems the following entry was made by the court, of that date: “The defendants having, by an instrument in writing signed by themselves and their counsel and filed in this cause, expressly and unconditionally withdrawn thn *49notice of appeal heretofore given and entered of record by defendants in this cause, which was allowed, and ordered by the court, thereupon came on to be heard defendants’ supplemental motion for a new trial herein, and the same having been heard and considered by the court, it is ordered that said supplemental motion for a new trial be and the same is hereby overruled; to which ruling of the court the defendants in open court except and give notice of appeal to the Court of Appeals.”

The supplemental motion for a new trial is as follows: “ Now come the defendants in said cause and tile the following as a supplemental ground for a new trial in said cause, to wit: that since the filing of the original motion for a new trial in said cause, the written testimony of N. Cass and others, taken before J. M. Smith, justice of the peace of Precinct No. 1, Milam county, Texas, in July, 1880, concerning the defendant James Bullock, has been discovered; that, at the time of the trial of said cause, defendants proved that due diligence and search had been made for said testimony, and that thereupon secondary oral evidence of said testimony was admitted to prove :said testimony; that again, and before the expiration of two days from the rendition of the verdict in said cause, defendants have caused an additional search to be made for said testimony, and that this last search has resulted in the finding of said written testimony. That said written testimony confirmed and in every respect agrees with the testimony of defendants’ witnesses and the testimony of the defense, and refutes the theory and most important, substantial and material positions of the prosecution; that with the written testimony defendants believe and aver that in their opinion the jury could not and would not have found a verdict against defendants; that said written testimony is hereto attached, marked A, and asked to be made a part of this paper; that defendants respectfully ask the court to withdraw and set aside *50for the present the order overruling the motion for a new trial in said cause and the sentencing of defendants, and hear this ground for granting a new trial and grant them (defendants) a new trial in said cause, and the affidavit of J. M. Smith, the justice of the peace aforesaid, on the identity of said written testimony and his official signature to the same hereto attached and asked to be-made a part of this paper.” This motion is sworn to and. is accompanied by the written evidence of the witnesses alluded to therein, which is fully identified by the justice of the peace as the testimony taken before him.

It can hardly be said that this application came fully up to the requirements of law which ordinarily obtain in granting. new trials on account of newly discovered evidence, as laid down in repeated decisions of this court.. And whilst we are not inclined to enlarge the rules laid down in such cases, newly discovered evidence being often the last resort of a convicted criminal, still, under the peculiar circumstances of this case as disclosed by the record before us, we are of opinion that a due administration of the law, and a proper regard to the substantial rights of the defendants, and especially because of the different and contradictory statements of the witnesses and the several material departures from the written testimony, we are of opinion the defendants are entitled to the benefit of the testimony taken before the justice of the peace, in order to show the disagreements and variances from what they had formerly testified to as true, and to aid the memory of the witnesses as to what the facts were, and to enable the. jury to properly weigh the testimony of the different witnesses.

We conclude, therefore, that under the circumstances the court erred in overruling the motion for a new trial based upon the supplemental motion and exhibits appended thereto; arid for this error the judgment will be reversed and the cause remanded, in order that the *51defendants may have the benefit of the testimony set out in their supplemental motion on another trial.

As a general rule a new trial must be applied for within two days after the conviction; but in cases of felony the court may for good cause shown allow the application to be made at any time before the adjournment of the court for the term. Code Crim. Proc. art. 779.

Reversed and remanded.