Romero v. State , 107 Tex. Crim. 70 ( 1927 )

ON MOTION FOR REHEARING.

LATTIMORE, Judge. —

Upon more mature consideration we have concluded that we were in error in upholding the action of the lower court in refusing to postpone or continue this case. As far as the record reveals, appellant was called upon only on one occasion after the return of the indictment to make announcement of ready for trial, and that was the time the case was tried. Prior to the call of the case appellant had filed an application for subpoena to issue to his home county for one Clarence Boyd, stating in the application that said Boyd was a farmer residing at Rosebud, Falls County. From facts connected with the development of the proceeding, it appears that the subpoena wias served on Clarence Boyd, a barber living in Rosebud, Falls County. Rosebud is located in the western part of Falls County at quite a distance from the county seat, and when the case was called for trial the witness Clarence Boyd did not appear, and an application for postponement was made because of his absence. It appears to be certified as a fact in bill of exceptions No. 3 as follows: “The court stated to the defendant to go on to trial and that he would see that the witness was in attendance, if not, he, the defendant, could then make a motion for postponement of the case.” It appears that a jury was selected on the day the case was set, and that on the following day a witness testified that he knew1 Clarence Boyd, who was desired by appellant as a witness, and that said Clarence Boyd had not been summoned. He further testified that there was another Clarence Boyd who lived in Rosebud, but was not the Clarence Boyd who was present and saw this difficulty. It appeárs that upon receiving this information appellant again made a motion for a continuance or postponement until the other Clarence Boyd could be had. The court stated to the defendant that he would try to get the witness and they could use him when he came. Subpoena was issued for said witness, but the sheriff later reported to the court that on account of the condition of the roads it was not possible to get the witness on that day. The case was concluded on that day, and before the charge was read to the jury appellant again asked that the case be postponed until this witness could be secured. This request, the trial judge declined to grant, being of opinion, as appears from his qualification to said bill of exceptions, that diligence was not shown. There is no question as to the materiality of the testimony of the absent witness. He appearéd before the court on the hearing of the motion for new trial and orally stated what he would have testified had he been present as a witness. He Was an eye-witness to the difficulty and, in effect, said that at the time deceased was cut, he was engaged in a fight with one Bruno Hernandez, in whose hand witness had just seen a knife, and the witness stated that appellant at the time of said fight was standing near by doing nothing. The state claimed that appellant wielded the knife which inflicted the fatal wound upon the deceased. The testimony of the absent witness went to the most vital point in the case. He testified on the hearing of the motion for new# trial that he was in the county but lived on a farm some miles out from Rosebud, and that he had never been summoned. We are not inclined to believe that a man who has had process served on his witness prior to the opening day of the trial term, and who makes a first application for a postponement or continuance for a witness shown to be in the county at that time, should go to the penitentiary because of the condition of the roads or the inability of the sheriff to procure the presence of such material witness, who was in the county when process descriptive of the witness was asked for, and who was in the county at the time of the trial. It has been well said that in some instances haste in law consists in going slow, and in our opinion a postponement of this case for another day, and a proper effort on the part of the officers, would have been productive of the presence of the witness at court. Had he been there it is quite likely his testimony would have produced a different result. The appellant was a Mexican, and the witness was an American, and presumably of good standing.

The motion for rehearing is granted, the judgment of affirmance is set aside, and the judgment is now reversed and the cause remanded.

Reversed and remanded.

Morrow1, P. J., absent.