Defendant was accused of the crime of grand theft, stealing an automobile belonging to 0. C. Boucher. He was convicted and sentenced to confinement in the state penitentiary at San Quentin. His motion for new trial was denied. He has appealed from the judgment and from the order denying his motion for new trial.

He presents the following grounds for reversal of the judgment and order: That the evidence is not sufficient to sustain the verdict and judgment; errors of law occurring during the trial; misconduct of the district attorney; abuse of discretion on the part of the trial judge in refusing his request for further time to obtain further affidavits concerning newly discovered evidence; error in denying his motion for new trial.

The evidence discloses that C. 0. Boucher owned and operated a second-hand automobile sales lot in the city of San Bernardino. On the afternoon of May 25, 1936, Boucher was in his office concluding the sale of an automobile to a customer when defendant drove up in a 1930 Ford coupe which he parked at the curb, Defendant approached Boucher and asked if he would accept the Ford in trade for a 1933 Dodge sedan. Boucher told defendant that he would and asked him to wait until he had completed the transaction in which he was then engaged. As soon as Boucher was free he looked for defendant. The Ford was still parked at the curb but defendant and the Dodge car were gone.

Burdette D. Shidler operated a garage in San Bernardino. Shortly after 6 o’clock P. M. of that same day Shidler received a telephone call asking him to go to Fortieth and Electric Streets in San Bernardino and bring in a broken-down automobile. Shidler went to the designated place and found defendant and the Dodge sedan which he towed to his garage, defendant riding with him in the tow car. The Dodge had thrown a connecting rod through the crank ease. Defendant signed an order for the repair of the car. He gave his name as W. G. Reed but signed the order “Wallace Reed”, his residence as Alhambra and his- telephone number as 2972-R. After the work order was signed defendant took his suitcase from the Dodge and departed. He was apprehended about January 1, 1938.

The foregoing summary of the evidence is taken from the testimony produced by the plaintiff. The defense was an alibi which was strongly supported.

Defendant urges that the foregoing evidence is insufficient to support the verdict and judgment principally because no intent to steal was proven and at most only an intent to “joy ride”.

When defendant had Shidler take the car to the garage and when he signed the work order for its repair he asserted the indicia of ownership of it from which the jury could reasonably infer an intent to appropriate it to his own use, or, in other words, to steal it. The evidence is positive that Boucher did not give defendant or any other person permission to drive the Dodge. The jury could have reasonably inferred an intent to steal from such facts.

During the cross-examination of Shidler the following occurred:

We can find nothing prejudicial or erroneous in these rulings. Defendant’s counsel was very evidently on a “fishing excursion”. He made no proffer of proof and we can only guess at what he expected to prove. If the expected proof is indicated in the questions it was immaterial. Shidler had no admitted handwriting of defendant with which to have the signature on the work order compared. No duty rested on him to have such comparison made. It made no difference to Shidler who paid him for repairing the Dodge.

The deputy district attorney in making the opening argument to the jury wrote his name several times on a black board and used these signatures to illustrate his argument concerning similarities and dissimilarities in signatures of the same person. Counsel for defendant objected to the district attorney “giving evidence in this case”. The trial court ruled in the presence and hearing of the jury that the writings were used merely to illustrate the argument being made. We find no error in this ruling. Further, the remarks were not assigned as error and no request was made for an instruction to the jury to disregard them. Defendant points out another remark of the deputy district attorney which he now claims was prejudicial. No objection was made in the trial court, the remark was not assigned as prejudicial misconduct and no instruction was asked upon it. The remark, if error, could not have been seriously prejudicial and the error, if any, cannot be urged here for the first time. (See People v. Harris, 219 Cal. 727 [ 28 Pac. (2d) 906 ].)

Defendant urges that the trial court abused its discretion in denying him further time in which to obtain and file affidavits in support of his contention that there was newly discovered evidence which would materially bear upon the question of his innocence if a new trial were granted.

The verdict was returned on March 23, 1938, and Friday, March 25, 1938, was fixed as the time for the pronouncement of judgment. On that day defendant moved for a new trial on all statutory grounds and in support of his motion presented an affidavit of his counsel which purported to disclose newly discovered evidence. The affidavit was clearly deficient and time was granted in which to file a second affidavit which was filed on that day. Upon request of defendant the hearing of the motion was continued until March 28, 1938, to permit the production of additional affidavits. At that time defendant requested further time in which to obtain and file further affidavits. His counsel made a statement in which he detailed the proof he hoped to obtain. The request for further time and the motion for new trial were denied and judgment was pronounced. Under this state of the record it is seriously urged that prejudicial error was committed that requires us to order a new trial.

The first affidavit was so insufficient that it requires no further notice. The second affidavit contains the following:

The record shows the, following proceedings under date of March 28:

We have here the serious question of a breach of discretion on the part of the trial judge in refusing to grant defendant time in which to secure affidavits supporting the statements of his counsel for it is of course admitted that the matter of granting a continuance was within the sound discretion of the trial court.

In measuring the due exercise of such discretion each ease should be judged from its own factual background. Here the people could not have been prejudiced in any way by a delay of five days which defendant asked to enable him to produce the affidavits. On the other hand, there is an indication that defendant might have been the victim of mistaken identity. If the evidence could be produced showing that another Wallace Reed stole the Alhambra Ford and which was driven by him to San Bernardino and left in front of the Boucher used car lot and later stole a second Ford in San Bernardino which he drove to Texas, defendant could hardly have been guilty of stealing the Dodge if he was at his place of employment six days during each week. The delay meant nothing to the people and might have meant much to defendant if the affidavits supported the statement of his counsel. The deputy district attorney did not seriously oppose the continuance.

Of course, the affidavit and statement of counsel did not demonstrate the innocence of defendant. There are several weaknesses in it. There is no showing or direct offer to show that the 1930 Ford coupe stolen in Alhambra was the same 1930 Ford coupe that was left in front of the Boucher sales lot in San Bernardino. There is only argument to that effect. That the man who rode in the tow car to the Shidler garage was the man who stole the automobile and drove it to Texas is not established unless Pickett’s statement be supported. However, if that could have been established it would have been a strong argument in favor of defendant because there is strong evidence that defendant was at his place of employment in Hermosa Beach six days out of every week during the month of March, 1935.

Counsel for defendant made a reasonable explanation why he was not in possession of any of these facts prior to the trial. If this client was innocent there was no reasonable source of information open to him except the officers of the law and while some of it at least was known to a deputy sheriff of San Bernardino County it was withheld until after the case had gone to the jury. While peace officers and officials connected with detection and prosecution of crime should be diligent in ferreting out and prosecuting the guilty they, should be fair with an accused. Evidence pointing to his innocence should not be suppressed. For a guilty man to escape punishment is a miscarriage of justice, but for an innocent man to be convicted is unthinkable.

A quite similar factual situation on a motion for new trial was presented to the trial judge in the case of People v. Goodwin, 202 Cal. 527 [ 261 Pac. 1009 ]. There counsel for defendant asked time in which to present affidavits of newly discovered evidence in support of the motion for new trial. The request was denied. It was there held that the trial judge should have granted defendant time in which to produce affidavits. The judgment was reversed with directions to grant the motion for new trial.

As under the facts before us a delay of not to exceed five days in pronouncing judgment could not have injured the cause of the people in the slightest degree and as the affidavit and statement of counsel indicated there had been no lack of diligence on the part of defendant in seeking the new evidence and as it was strongly indicated that, if produced, such evidence would have had an important bearing on the question of the guilt or innocence of defendant the trial judge should have granted the time requested to produce the affidavits. On the record before us and on the authority of the Goodwin ease we conclude that the refusal of the request for time in which to produce the affidavit and the consequent denial of the motion for new trial constituted prejudicial and reversible error.

The judgment and order appealed from are reversed with instructions to the trial court to retry the cause.

Barnard, P. J., and Haines, J., pro tern., concurred.

A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 8, 1938.